Title 105 · ORS Chapter 105

105.148, the clerk of the court: �� (a) Shall schedule a hearing on the defendant�s request as soon as practicable; �� (b) Shall notify both parties of the hearing date; �� (c) Shall mail

Citation: ORS 105.148

Section: 105.148

105.148, the clerk of the court:

�� (a) Shall schedule a hearing on the defendant�s request as soon as practicable;

�� (b) Shall notify both parties of the hearing date;

�� (c) Shall mail or send by facsimile a copy of the defendant�s request to the plaintiff; and

�� (d) May not issue a writ of execution of judgment of restitution pending the hearing.

�� (2)(a) At the hearing, except as provided in paragraph (b) of this subsection, the court may consider only the following issues:

�� (A) Whether the defendant complied with the order.

�� (B) Whether the plaintiff complied with any requirement of the order that is a predicate to compliance by the defendant.

�� (C) Whether the parties agreed to modify the order and complied with the modified order.

�� (D) Whether one party unfairly prevented compliance by the other party.

�� (b) If ORS chapter 90 applies to a dwelling unit, in addition to the issues described in paragraph (a) of this subsection, the court may consider the following issues:

�� (A) Whether the stipulated agreement was entered into in good faith as required by ORS 90.130 or is unconscionable as described in ORS 90.135.

�� (B) Whether, for a defendant whose noncompliance concerns performance or conduct, the noncompliance constitutes good cause for purposes of an applicable law or contract that requires the plaintiff to have good cause for terminating the tenancy.

�� (C) Whether, for a defendant whose noncompliance concerns a failure to pay rent due for future rental periods pursuant to ORS 105.146 (2)(c), the defendant has claims against the plaintiff for moneys that offset the rent. The defendant�s claims must be pursuant to ORS chapter 90 or the rental agreement and must have arisen after the entry of the order.

�� (c) The defendant may not raise defenses or claims involving issues other than issues described in paragraphs (a) and (b) of this subsection.

�� (3) If the court finds in favor of the plaintiff after the hearing, the clerk may issue a writ of execution of judgment of restitution. If the defendant did not appear at the hearing, the clerk may issue the writ immediately. If the defendant did appear, the clerk may issue the writ no earlier than 24 hours after the court�s ruling. Further notice to the defendant is not required.

�� (4) If the court finds in favor of the defendant after the hearing, the court shall set aside the judgment. The court may reinstate the order, terminate the order and enter a judgment dismissing the plaintiff�s action in favor of the defendant, enter a new order or schedule a trial on the plaintiff�s action as soon as practicable. [2001 c.596 �12 (105.146, 105.148 and 105.149 enacted in lieu of 105.147); 2003 c.378 �25; 2005 c.391 �36]

�� Note: See note under 105.146.

�� 105.150 [Repealed by 1989 c.506 �20]

�� 105.151 Enforcement of judgment of restitution; notice of restitution. (1) If the court renders judgment for restitution of the premises to the plaintiff, the plaintiff may only enforce that judgment in the following manner:

�� (a) Issuance by the clerk of the court and service upon the defendant of a notice of restitution that shall give the defendant four days to move out of the premises, including removal of all personal property; and

�� (b) After the expiration of the four-day period provided in the notice of restitution, issuance by the clerk of the court and service by the sheriff upon the defendant of a writ of execution of judgment of restitution, directing the sheriff to enforce the judgment by removing the defendant and by returning possession of the premises to the plaintiff, along with an eviction trespass notice from the sheriff.

�� (2) Following entry of judgment for restitution of the premises in favor of a plaintiff, or any date for possession as specified in the judgment, whichever is later, the plaintiff may request that the clerk of the court in which the judgment is entered issue a notice of restitution. The notice of restitution shall order the defendant to move out of the premises, including removing all personal property, in no less than four days. The plaintiff may direct the clerk to extend the notice period beyond four days. Following payment of any required fees, the clerk shall issue the notice.

�� (3) This section does not prevent a landlord in a tenancy to which ORS chapter 90 does not apply from exercising a right of entry provided by law and described in ORS 105.105 in order to recover possession of the premises, provided that the right of entry is stated in the rental agreement between the parties. [2001 c.596 �14 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154); 2003 c.378 �26]

�� 105.152 Form of notice of restitution for judgment entered under ORS 105.146. If the court entered a judgment pursuant to ORS 105.146, a notice of restitution issued by the clerk of the court pursuant to ORS 105.151 must be in substantially the following form:

______________________________________________________________________________

IN THE CIRCUIT COURT FOR

THE COUNTY OF _________

Notice of Restitution

because of not complying

with a court-approved agreement

Case Number ______

TO: _____________________

(Tenant/Defendant)

___________________________

(Address of rental property)

�� You and your landlord made a court-approved agreement allowing you to stay in the property. Your landlord claims that you have not kept that agreement. (A copy of the landlord�s claim is attached.) Unless you can prove to the court why you should not have to move out, you must move by the MOVE OUT DATE listed below. If you do not, the landlord can have the Sheriff physically remove you.

�� If you believe that you have kept the agreement or that you have a legal reason for not keeping the agreement, you are entitled to a court hearing. Legal reasons are listed in ORS 105.148 and 105.149. They include the landlord interfering with your effort to keep the agreement and your complying with a modification of the agreement made by you and your landlord.

�� To request a hearing, you must go to the court and complete a form explaining why you believe that you have kept (or should not be required to keep) the agreement. You have to do this before _____ a.m./p.m. on _________. The Sheriff will not physically remove you from the property before the hearing.

�� If the judge rules against you at the hearing, the landlord can have the Sheriff physically remove you.

DEADLINE TO MOVE OUT

MOVE OUT DATE: _________

�� If you do not request a hearing, you must move out of the property no later than 11:59 p.m. on the Move Out Date.

�� If you and everyone else living there do not move out by that time, the Sheriff will physically remove you. You must also move all of your belongings by that time. Anything you leave behind will be stored or disposed of as allowed by law.

__________________

Deputy Court Administrator

______________________________________________________________________________ [2001 c.596 �15 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154); 2003 c.378 �27]

�� 105.153 Form of notice of restitution for judgment not entered under ORS 105.146. If a court entered a judgment other than pursuant to ORS 105.146, a notice of restitution issued by the clerk of the court pursuant to ORS 105.151 must be in substantially the following form:

______________________________________________________________________________

In the Circuit Court for the

County of _________

NOTICE OF RESTITUTION

Case Number _________ TO: __________________

(Defendant/Tenant)

___________________________

(Address of property)

DEADLINE TO MOVE OUT

MOVE OUT DATE: _________

�� The Court has ordered you to move out of the property. You must move out no later than 11:59 p.m. on the Move Out Date.

________________________

Deputy Court Administrator

______________________________________________________________________________ [2001 c.596 �16 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154)]

�� 105.154 [1995 c.559 �50 (enacted in lieu of 105.155); 1995 c.658 �70a; 1997 c.577 ��36,37; 1999 c.603 �37; repealed by 2001 c.596 �13 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154)]

�� 105.155 [Amended by 1979 c.765 �6; 1985 c.588 �15; 1993 c.369 �27; repealed by 1995 c.559 �49 (105.154 enacted in lieu of 105.155)]

�� 105.156 Form of writ of execution for judgment of restitution. The writ of execution of judgment of restitution referred to in ORS 105.151 must be in substantially the following form:

______________________________________________________________________________

State of Oregon,�� )�� WRIT OF

�� )�� ss.�� EXECUTION OF

�� )�� JUDGMENT OF

�� )�� RESTITUTION

County of _____�� )

To the Sheriff:

�� This was an eviction action for possession of the following premises:

___________________________

(city)

___________________________

(county)

�� Judgment was entered that the plaintiff have restitution of the premises and that the plaintiff may be entitled to court costs and disbursements.

�� In the name of the State of Oregon, you are ordered to enforce and serve this writ on the defendant, in the manner provided in ORS 105.161.

�� You are ordered to enter the premises and remove the defendant and any other individual present on the premises who is subject to the judgment and return possession of the premises to the plaintiff. You may use all reasonable force that may be necessary to enter the premises and remove individuals who are subject to the judgment.

�� The plaintiff shall be responsible for removing, storing and disposing of any personal property left by the defendant on the premises following the removal of the defendant and the return of possession of the premises, as provided by ORS