Defenses

Counterclaims

FED procedures

How to represent yourself

Relevent statutes

The purpose of this handout is to explain to you the procedures involved in a residential housing eviction hearing so you can represent yourself if you so choose. An eviction lawsuit is called a suit for "Forcible Entry or Wrongful Detainer." It is commonly called an "FED." The Oregon Residential Landlord and Tenant Act is a state law. State laws are referred to as Oregon Revised Statutes (ORS). The landlord-tenant law starts at ORS 90.100.

It is a good idea to talk with a lawyer as soon as you receive an eviction notice to find out what your rights are. If court papers are then filed (an FED) and there is an eviction hearing, you will know whether you have any legal defenses or counterclaims.

A "defense" is a legal reason why you should not be evicted. It is not a legal defense that you children are sick, or you don't have the money to move.

There are many possible legal defenses to an eviction. Some examples are as follows:

1. The eviction notice is incorrectly written. For example, if you are behind on rent, the eviction notice must be in writing and say that you have at least 72 hours to pay the back rent or move. The written notice must also specify the date and time by which the rent must be paid. If the notice does not satisfy these requirements, it is incorrect. See ORS 90.400(2)(c).
2. The eviction notice was given too soon. For example, a 72-hour notice to pay rent or move cannot be given until the rent is at least seven days overdue. In ther words, if you were supposed to pay rent on the 1st of the month, the landlord can give you a 72-hour notice to pay rent no sooner than on the 8th of the month. See ORS 90.400(2)(b)(A).
3. The eviction is "retaliation against you for an illegal reason. For example, you are being evicted because you complained about poor conditions in your home, or because you threatened to contact a building inspector, or because you joined a tenant's organization. NOTE: You cannot claim retaliation if the eviction notice is for nonpayment of rent and you do owe rent. See ORS 90.385.
4. The eviction is for an illegal reason. For example, it is illegal for a landlord to discriminate (a) because of your race, color, religion, sex, marital status, source of income, familial status (i.e. children), or national origin (ORS 659.033); or (b) because you are disabled (ORS 659.430); or (c) because you are blind (ORS 346.630) or deaf (ORS 346.660) or physically impaired (ORS 346.690) and have a guide dog or an assistance animal. See ORS 90.390.
5. The eviction is based on a 24-hour notice because of your supposedly "outrageous conduct," but the conduct complained about wasn't really "outrageous." See ORS 90.400(3)(e).
6. The eviction is for nonpayment of rent, and although you owe the rent, there are substandard or unsafe housing conditions which may reduce the amount of rent you should owe. Examples of such conditions are a stopped-up toilet, leaking roof, or lack of heat. See ORS 90.320 for a complete list of what conditions the landlord must maintain.

If you intend to use this last defense (i.e. A-6), you must show that your damages for these conditions are as much as, or more than, the amount of rent owed. In other words, if you owe a lot of rent, you have to have very serious substandard conditions. You can improve your chances by paying all or part of the rent owed into the court, before the trial is over. Then, in order to win, your damages must only be as much as the rent still owed after deducting what you have paid into the court. For example, if your rent is $500 per month, and you owe all of it, your damages must be $500 or more. But if you pay $350 into the court, you damages must only be $150 or more for you to win. Your payment into court must be made before the judge's final decision (the "entry of judgment"). Your payment probably should be in cash, money order, or certified check.

If this might be your defense, you should definitely see a lawyer about it to learn all your rights. This is called a "habitability defense."

You might also have claims against the landlord for money damages. These are called "counterclaims." You can use any counterclaims that arise from the rental agreement, the landlord-tenant law, or some other law. Counterclaims based on the Landlord and Tenant Act must have occurred during the past 12 months.

If the eviction is because of back rent, and if you win a counterclaim equal to the back rent owed, you won't get evicted and you won't get any money: the back rent and the counterclaim "set off" against each other (cancel each other out). If you win a counterclaim for more than the back rent, the landlord will actually owe you some money.

If the eviction is not for unpaid rent, your counterclaim for money damages alone will not defeat the eviction. For example, if the landlord is evicting you on a 30-day no-cause termination of tenancy notice, your counterclaim for habitability damages will not stop the eviction. The only defenses to such an eviction are illegal retaliation of illegal discrimination.

There are many possible counterclaims in any eviction. Some examples are as follows:

1. The landlord locked you out, or deliberately had your utilities turned off or even threatened to do so, in an effort to make you move without an eviction lawsuit. If this is the case, you may have a counterclaim for twice your actual damages or two months' rent, whichever is more. See ORS 90.375.
2. The landlord unlawfully or unreasonably entered the premises when there was not an emergency and without giving notice to you. You may have a counterclaim for actual damages of not less than one month's rent. See ORS 90.322(7).
3. There are unsafe or substandard housing conditions ("habitability conditions") such as lack of heat, unsafe wood stove, leaking roof, stopped-up toilet, etc. Because of these problems, you have "overpaid" past rent for each month while the problems existed. That is, you have paid more rent than the place was really worth because of the habitability problems. You may have a counterclaim for a percentage of past rent paid, depending on how bad the conditions are. See ORS 90.320 for a list of what the landlord generally must do to keep the place safe and liveable. See also ORS 90.360 for other considerations when raising this counterclaim. NOTE: In a nonpayment of rent FED, you may raise this counterclaim ONLY IF you can also prove that the landlord knew or should have known about the habitability problems before the FED was filed. See ORS 90.370.
4. Retaliation (see A-3 on page 1) can be both a defense to a general eviction and a counterclaim for money damages (twice your actual damages or two months' rent, whichever is more). See ORS 90.385(3). The same is true for discrimination (see A-4 on page 1).

If you have a rental agreement for a certain amount of time, an the time runs out, you can be evicted by a lawsuit without an advance written eviction notice from the landlord. Other than that, THE ONLY LEGAL WAY A LANDLORD CAN EVICT YOU IS TO GIVE YOU A PROPER WRITTEN EVICTION NOTICE. In either case, if you don't move out within the rental agreement or eviction notice period, the landlord MUST FILE AN EVICTION LAWSUIT AND GET A COURT ORDER REQUIRING YOU TO MOVE OUT! ONLY THE SHERIFF CAN PHYSICALLY REMOVE YOU, AND THE SHERIFF CAN ONLY DO SO AFTER THE LANDLORD GETS A COURT ORDER. It is not legal for a landlord to lock you out, to shut off water or power to your dwelling or even threaten to do these things, or to hold your property because you owe rent. If this happens to you, see a lawyer immediately.

If you get a written eviction notice and then do not move out in the time allowed by the law and the notice, the landlord can file an eviction lawsuit (FED) in Circuit or Justice Court. The eviction lawsuit papers are then delivered to you, either personally or by leaving a copy at your home an mailing you another copy.

The FED papers will say when and where the first appearance is. If you don't show up, you will LOSE automatically, and you will be ordered to move out and to pay the landlord's court costs (approximately $75 for filing and service, plus a prevailing party fee of $60). However, in this case, you will not owe any attorney fees for the landlord. See ORS 105.137(3).

If you are willing to move, but need more time, you can show up at the first appearance and ask for more time. The judge does not have to allow it, but if the landlord agrees, you will get it. A landlord is more likely to agree if you are specific about the time needed and it is no more than a few days or a week at the most, and if you have a good reason for needing more time. The best strategy is to discuss this settlement possibility with the landlord before court.

If you think you have a legal defense (a legal reason why you should not be evicted), you can show up at the first appearance and ask for a trial or hearing (second appearance) and represent yourself. You can also have a lawyer represent you. The rest of this handout is about representing yourself.

It is important to BE ON TIME for all court appearances. Bring an outline of what you want to say, a list of your witnesses and what questions to ask them and any other important evidence, such as photographs.

1. At the first appearance: Dress neatly and be early! Many courthouses now have metal detectors, and there is usually a delay to get in. Go to the information kiosk on the Second Floor of the Lane County Courthouse (or to the Justice Court office) and find out what courtroom your appearance will be in. There will be other cases like yours on the list. When your case is called, stand up. Tell the judge who you are, that you want a trial (a second appearance), and whether you have witnesses. The judge may not give you a chance to say what you want. Instead, the judge may insist on asking you some questions first, like whether you got the notice and whether you admit to owing rent. At some point, the judge will ask you if you have a defense or will give you time to talk. If you want a trial, you will need to tell the judge that you have a defense to the eviction, and you may have to give a brief description of the defense.

USUALLY, if you request a trial, it will be set for a later date.

You and the landlord will be sent to the clerk to file a written answer describing your defense. The court clerk has a form you can use. A trial will cost about $83 for you and about $50 more for the landlord. If you request a trial with a jury (without a lawyer you may not want a jury, because it is more complicated), you will have to pay about $100, in addition to the $83 you paid for a trial. After that, you will be sent to the docket clerk for scheduling. The trial will be set for the next available date, which could be as early as 8:30 a.m. on the next day. If you can't pay the fees and you don't get a fee deferral (see D-2 below), YOU CANNOT HAVE A TRIAL- -YOU LOSE. 

BE SURE YOU ARE READY AT THE FIRST APPEARANCE. The clerk can give you an Answer form to fill out before the court. The top gets filled out the same way as on the FED papers. The rest is filled out depending on what defenses you have. If you want to ask for money damages in addition to defending the FED, you must add a paragraph to the Answer form called "Counterclaim" and describe your claims there.

2. Fee deferral: If you cannot afford the trial fees, ask the clerk for a "fee deferral" form. This would waive or postpone your fees and costs. Once the form is filled out it must be notarized and then taken to the judge to be approved. It is better to get the fee deferral form filled out BEFORE you go in for your first appearance so you can give it to the judge when you ask for your trial date (second appearance).

After the fee deferral form is filled out, you sign it in two places (on the lines marked with an "X"). The affidavit part must be notarized. You can find a Notary at Legal Aid or any bank, or you can ask the clerk at the courthouse to notarize it.

If you have little income or are on welfare or get food stamps, the judge will probably waive the court fees for you. If the judge will not waive the fees, you may have to ask the judge for some time to get the money (borrow it from a friend, for example). If you can't do either, you do not get a trial and you lose.

3. If the landlord has or wants a lawyer: If the landlord has a lawyer and you want to talk to one also, tell the judge you need a postponement. If the landlord doesn't have a lawyer but wants to get one, the judge will postpone the hearing for a few days. You can get one too, if you wish. If you requested the postponement and it is longer than 15 days, the judge may order you to pay rent into the court. See ORS 105.137(5).

Remember, if the landlord has a lawyer and you lose, you will probably be responsible for the landlord's attorney fees, too, even if you do not have a lawyer. If you win, you can make the landlord pay your attorney fees, if you have any. You may be able to use this provision to get a private attorney to represent you for nothing, on the premise that the attorney will get attorney fees from the other side if you win the case. See ORS 90.255.

If the hearing is delayed for you to get a lawyer, see a private lawyer or Legal Aid immediately (that same day if possible).

4. Handling the trial (second appearance): Dress neatly, be early, and bring your outlines, evidence, witnesses, etc.

a. Prepare what you are going to say ahead of time. Make a list of the important events, in the order they happened. While you should not just read it, having a written list of what you are going to say helps you remember things and be more relaxed.

b. Witnesses. It is really important to have one or more witnesses that support what you will say. The best witnesses are the people who know the most, and who will make the best impression on the judge. (Tell them to dress nicely and be very polite to the judge.) Talk to your witnesses and be sure they are prepared and that they are clear about how things happened. They can have notes to help them, too.

c. Other evidence. If your defense is substandard housing conditions ("habitability" problems), photographs can be very good evidence to show things like sagging ceilings, broken windows, 
broken porch steps, ceiling leaks, trash piles, etc. Other kinds of evidence could be your rental agreement, your rent receipts, or actual items or property, for example, property damaged by ceiling leaks.

d. Subpoenas. If a witness is reluctant to come, or can't get off work, go to the Court Civil Department (2nd floor of the courthouse) a few days before the hearing and tell the clerk you have an FED hearing and need to subpoena one of your witnesses. Bring the FED papers with you. The clerk will sign a subpoena. The top of the subpoena is filled out with the court caption, just like your FED papers. Fill in the date, time and place of the hearing and the witness' name. Deliver a copy to the witness and make a copy for yourself. Subpoenaed witnesses are entitled to $30 plus $0.25 per mile of travel (ORS 44.415) paid in advance. The witness can "waive" (agree not to take) these fees.

At the second appearance, the landlord gets to go first because the landlord filed the lawsuit. Don't get mad, don't make faces, and don't argue with the landlord (or the judge). The only time you can interrupt is if the landlord or a witness for the landlord repeats something that someone else (not you) said outside of the courtroom. That is "hearsay."

The landlord and landlord's witnesses are allowed to repeat what you said, even if it is hearsay. You and your witnesses are allowed to repeat what the landlord said. But nobody is supposed to say things they were told by other persons who are not parties to the eviction. If they try, you can interrupt by standing and saying to the judge: "I object. This is hearsay, this witness was not there" or "this witness does not know this firsthand." Do this any time someone on the other side tries to say what someone else (not you) told them.

When the landlord or each of the landlord's witnesses are finished talking, you have the right to ask them questions. This is called "cross-examination." Be polite, don't argue, and keep your questioning short. If you think they are not telling the truth, there is not much you can do about it right then. You will get your chance to tell your side of it later.

When the landlord is all finished, and the landlord's witnesses are all finished, it's your turn. You get to tell your side and then each of your witnesses gets to give their testimony. The landlord can ask questions of you and your witnesses. Also, the judge might ask questions.

When you have your witnesses called up to testify, have them say their name and address and whether they are a neighbor, friend, or relative. Then ask them to describe what they saw and what they know about your defense or counterclaims. For example, if you claim bad housing conditions, they could describe how bad they are and how long they have been a problem (broken windows, leaky pipes, toilet overflow or whatever). If they leave anything out, it is OK to specifically ask them about it. Be sure they cover everything you want covered. That's why a written outline is so important.

5. The Judge's decision: When you are all done, the judge will either decide for the landlord or for you. If the judge decides for the landlord, you will be ordered to move out at a certain time; you can beg for more time - - but it is usually not allowed even when you have a good reason, unless the landlord agrees. Generally, the judge will order you to get out that same day, but it will take the sheriff another 3 to 5 days to make you get out. You will also be ordered to pay the landlord's court costs (about $210) and the landlord will be given a "judgment" against you for the costs.

See the Legal Aid handout on "Garnishment and Attachment" for an explanation of how the landlord can try to collect a judgment. 

If you win, you do not have to move. Also, if you had a counterclaim that the landlord owed you money (for example, for bad housing conditions), you may be given a "judgment" for money against the landlord. Also, the landlord will be ordered to pay your court costs. To collect your judgment you will probably need an attorney's advice - - it is too complicated to explain in this handout. The "Garnishment and Attachment" handout mentioned above will give you some information on this. One way to handle it is to credit the judgment against future rent.

Click here to view Oregon Revised Statutes online.

Another helpful reference is the OSPIRG (Oregon Student Public Interest Research Group) Renter's Handbook.  These can be obtained at the University of Oregon student union (the EMU).
 

THIS PAMPHLET IS A GENERAL STATEMENT OF LAW AND PROCEDURE AND NOT ASUBSTITUTE FOR SPECIFIC LEGAL ADVICE.  IT MAY GIVE YOU SOME IDEA OF YOUR RIGHTS, BUT THE LAW IS ALWAYS CHANGING THROUGH ACTIONS OF THE COURTS AND LEGISLATURE.                So when a problem arises . . . SEE A LAWYER! Don't know a lawyer?  Contact the OREGON STATE BAR REFERRAL SERVICE (Toll Free Number: 1-800-452-7636).  Can't afford a lawyer?  If you live in Lane County, contact Lane County Legal Aid and Advocacy Center, 376 East 11th Avenue, Eugene, Oregon 97401 (541-485-1017).  In other Oregon counties, check the telephone yellow pages under the heading "attorneys" for the Legal Aid or Legal Services office closest to your city. We do not accept applications by e-mail.  For assistance, please contact our office in person or by phone.

Back to the Top of the Page