105.980���� Xeriscaping ACTIONS FOR RECOVERY OF REAL PROPERTY ����� 105.005 Right of action; recovery; damages. (1) Any person who has a legal estate in real property and a present right to th

105.980���� Xeriscaping

ACTIONS FOR RECOVERY OF REAL PROPERTY

����� 105.005 Right of action; recovery; damages. (1) Any person who has a legal estate in real property and a present right to the possession of the property, may recover possession of the property, with damages for withholding possession, by an action at law. The action shall be commenced against the person in the actual possession of the property at the time, or if the property is not in the actual possession of anyone, then against the person acting as the owner of the property.

����� (2) In an action brought under subsection (1) of this section or in a separate action for damages only, a person who, throughout the vesting period, used or occupied land of another with the honest and objectively reasonable belief that the person was the actual legal owner of the land shall not be liable for:

����� (a) Double or treble damages under ORS 105.810 (1) to (3) or 105.815; or

����� (b) The value of the use or occupation of the land by the person throughout the vesting period. [Amended by 1989 c.1069 �2; 1991 c.109 �1; 1999 c.544 �3]

����� 105.010 Contents of complaint. The plaintiff in the complaint shall set forth:

����� (1) The nature of the estate of the plaintiff in the property, whether it be in fee, for life, or for a term of years; including, when necessary, for whose life and the duration of the term.

����� (2) That the plaintiff is entitled to the possession thereof.

����� (3) That the defendant wrongfully withholds the property from the plaintiff to the damage of the plaintiff for such sum as is therein claimed.

����� (4) A description of the property with such certainty as to enable the possession thereof to be delivered if there is recovery.

����� 105.015 Answer. The defendant shall not be allowed to give in evidence any estate, license or right of possession in the property in the defendant or another, unless the same is pleaded in the answer. If pleaded, the nature and duration of the estate, license or right of possession shall be set forth with the certainty and particularity required in a complaint. If the defendant does not defend for the whole of the property, the defendant shall specify for what particular part the defendant does defend.

����� 105.020 Substitution of landlord for tenant. A defendant who is in actual possession may, for answer, plead that the defendant is in possession only as tenant of another; naming the landlord and the place of residence of the landlord. Thereupon the landlord, if the landlord applies therefor, shall be made defendant in place of the tenant and the action shall proceed in all respects as if originally commenced against the landlord. If the landlord does not apply to be made defendant within the day the tenant is allowed to answer, the landlord shall not be allowed to, but shall be made defendant if the plaintiff requires it. If the landlord is made defendant on motion of the plaintiff the landlord shall be required to appear and answer within 10 days from notice of the pendency of the action and the order making the landlord defendant, or such further notice as the court or judge thereof may prescribe.

����� 105.025 Verdict. The jury by their verdict shall find as follows:

����� (1) If the verdict is for the plaintiff, that the plaintiff is entitled to the possession of all or a part of the property described in the complaint, or that the plaintiff owns an undivided share or interest in all or a part of the property; including the nature and duration of the estate of the plaintiff in such property.

����� (2) If the verdict is for the defendant, that the plaintiff is not entitled to the possession of the property described in the complaint, or the part that the defendant defends, and the estate, license or right to possession in such property established on the trial by the defendant, if any, as the same is required to be pleaded.

����� 105.030 Damages for withholding; setoff for improvements. The plaintiff shall only be entitled to recover damages for withholding the property for the term of six years next preceding the commencement of the action, and for any period that may elapse from the commencement to the time of giving a verdict, excluding the value of the use of permanent improvements made by the defendant. When permanent improvements have been made upon the property by the defendant, or those under whom the defendant claims, while holding under color of title in good faith and adverse to the claim of the plaintiff, the value of the improvements at the time of trial shall be allowed as a setoff against such damages.

����� 105.035 Judgment when plaintiff�s right to possession expires. If the right of the plaintiff to the possession of the property expires after the commencement of the action and before the trial, the verdict shall be given according to the fact and judgment shall be given only for the damages.

����� 105.040 Order to make survey. (1) The court or judge thereof may, on motion, and after notice to the adverse party, or cause shown, grant an order allowing the party applying therefor to enter upon the property in controversy and make survey and admeasurement thereof for the purposes of the action.

����� (2) The order shall describe the property. A copy of the order shall be served upon the defendant, and thereupon the party may enter upon the property, and make the survey and admeasurement. If any unnecessary injury is done to the premises, the applying party is liable therefor.

����� 105.045 Action not prejudiced by alienation by person in possession. An action for the recovery of the possession of real property against a person in possession is not prejudiced by any alienation made by such person, either before or after the commencement of the action. If the alienation is made after the commencement of the action, and the defendant does not satisfy the judgment recovered for damages for withholding the possession, the damages may be recovered by action against the purchaser.

����� 105.050 Cotenant shall prove ouster. In an action by a tenant in common of real property against a cotenant, the plaintiff shall show, in addition to the evidence of right of possession, that the defendant either denied the plaintiff�s right or did some act amounting to a denial. [Amended by 1969 c.591 �281]

����� 105.055 Conclusiveness of judgment. (1) Except as provided in subsection (2) of this section, the judgment in an action to recover the possession of real property is conclusive as to the estate in the property and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom the judgment is given, and against all persons claiming from, through or under such party, after the commencement of the action.

����� (2) When service of the summons is made by publication and judgment is given for want of an answer, at any time within two years from the entry thereof the defendant or the successor in interest of the defendant as to the whole or any part of the property, shall, upon application to the court or judge thereof, be entitled to an order vacating the judgment and granting the defendant a new trial upon the payment of the costs of the action.

����� (3) In an action against a tenant the judgment is conclusive against a landlord, who has been made defendant in place of the tenant, to the same extent as if the action had been originally commenced against the landlord.

����� 105.060 Effect of new trial on plaintiff�s possession. If the plaintiff has taken possession of the property before the judgment is set aside and a new trial granted as provided in ORS