What a landlord can legally do to make a tenant move out
after the tenant has lost an eviction lawsuit 

This handout deals with the following situation:  The landlord has won an eviction lawsuit (known as a Forcible Entry and Unlawful Detainer, or FED) against the tenant, either after a trial in front of a judge or jury, or after a default decision, which is when the tenant doesn't show up at the required time for the trial.  This handout explains what the landlord can do, after winning the FED, to make the tenant move out of the rental premises.  It also explains what the tenant's rights are.  NOTE:  This is the only way a landlord can get a tenant out, unless the tenant leaves voluntarily. 

The first thing the landlord must do is file and win an FED.  As the winner, the landlord will immediately receive from the court an order (or decision) by the judge, called a Judgment of Restitution.  This court order will do two things:  1)  Order the tenant to move out by a certain date and time, and 2)  Give the landlord a judgment against the tenant for the landlord's court costs.  The idea is that the court order restores to the landlord the legal right to possession of the rental unit, which the landlord had previously given to the tenant when the tenant moved in. 

If the tenant loses (or does not show up) at the FED trial, the judge will decide the date and time by which the tenant must move out, and this will be included in the court order (or Judgment of Restitution).  The judge often will require that the tenant move out that same day, unless the tenant shows up in court and has a very good reason why the judge should allow an extra day or two (for example, if the tenant has a very sick child). 

Under Oregon law, a landlord cannot ever use self-help (or force) to get  tenant out of the rental unit.  This is true before a tenancy has been terminated, after an FED has been filed, or even after an FED has been won ordering the tenant to leave.  The landlord cannot forcibly remove the tenant, change the locks, or turn off the tenant's electrical power or water.  Only the sheriff can use force. 

If a landlord does use self-help or force to remove a tenant, the law states that the landlord is liable to the tenant for two months rent or twice the tenant's actual damages, whichever is more.  Oregon Revised Statute (ORS) 90.375.  (An example of actual damages might be the cost of refrigerated food which spoiled after the landlord illegally shut off the electricity.) 

If the tenant does not voluntarily move out by the time ordered by the judge, the landlord must return to the court clerk, pay a $3 fee, and get another court order, called a Notice of Restitution. The tenant will then be served with the Notice of Restitution by either the sheriff or a private process server (ORS 105.154).  The landlord also mails a copy of the Notice of Restitution to the tenant by first class mail. Service of the Notice of Restitution may be accomplished by either personally serving the tenant or attaching the Notice of Restitution to the main entrance of the premises.  The fee for this service will be between $20-25 (ORS 21.410).  These fees will be added to the landlord's court costs which the tenant has already been ordered to pay by the judge. 

The Notice of Restitution warns the tenant that unless she\he moves out within another 4 days the sheriff may have to forcibly remove the tenant and the tenant's property.  Although the tenant does have four more days, it is best for the tenant to play it safe and move out before the end of the four days.  Otherwise the tenant risks having the sheriff put the tenant out on the street and risks having all of her\his property hauled off to storage. 

The 4-day period does not begin until the day after the tenant is served with the Notice of Restitution and mails a copy, not on the day the tenant finds it or receives it.  Also, if the last day of the four day period is a Saturday, Sunday, or legal holiday, the period will extend until the next day which is not a Saturday, Sunday, or legal holiday. 
 
For example:  If on Monday, the landlord asks the sheriff to remove the tenant, the sheriff will serve and mail the 4 day notice and order on Tuesday.  The 4 day period begins at 12:01 a.m on Wednesday.  It would end at 11:59 p.m. on Saturday, but because weekends don't count, the period is extended to include Monday, and so the period ends at 11:59 p.m. on Monday night. 

At the end of the 4 days, the landlord may pay a $4 fee and request a Writ of Execution from the court.  The landlord will  then take the Writ to the sheriff, pay another $47 fee, and request that the sheriff serve the Writ and forcibly remove the tenant. Remember the tenant will eventually be responsible for all fees the landlord must pay to have the tenant removed from the rental premises.  The Writ of Execution will be served by the sheriff on the tenant personally or if the tenant is not home the sheriff may post the Writ of Execution on the main entrance to the premises. The sheriff will also mail a copy to the tenant by first class mail. 

The tenant may ask the landlord for more time and if the landlord agrees, the landlord may request the sheriff to delay enforcement of the Writ at any time before actual service of the Writ on the tenant.  Once the tenant has been served by the sheriff there are no more chances to ask the landlord for more time.  The sheriff will not arrest the tenant, but will "escort" (or carry, if necessary) the tenant out of the rental unit and off the landlord's property.  The sheriff does not like to do this, but it is part of the sheriff's job.  If the tenant resists or fights with the sheriff, then the sheriff may arrest the tenant. 

Either the sheriff or the landlord can remove the tenant's property.  The landlord must make this decision before the sheriff goes out to forcibly remove the tenant so this information can be included on the Eviction Trespass Notice.  This notice will be served on the tenant with the Writ of Execution and tells the tenant whether to contact the sheriff or the landlord in order to claim their property. 

The landlord can have the sheriff arrange to remove the tenant's property.  The sheriff will hire a private moving and storage company.  While the sheriff removes the tenant, the moving company will box up, haul off, and store the tenant's personal property, including the tenant's automobile if it is parked on the landlord's property.   

The tenant cannot get his or her property back without paying the moving company's costs, unless the tenant can get a judge to grant a Claim of Exemption.  (See below for further discussion of Claims of Exemption.)  If no Claim of Exemption is filed, the moving company will hold the tenant's property for at least 10 days (see ORS 77.2100 and ORS 87.192), and then may sell it to cover the moving and storage costs.  (Any excess from the sale goes to pay the sheriff's fees first, then the landlord's court costs judgment, and finally to the tenant, if there is any left over.)   

This is the safest procedure for the landlord to use, because the sheriff and the moving company take all the risks, for example, of damaging the tenant's property or of being attacked by an angry tenant.  But it's also slow (the sheriff has to hire the moving company) and it's expensive:  In Lane County, the sheriff requires the landlord to pay a deposit of $250 for every room of furniture which is to be hauled off.  ORS 21.410 (1) (c).  The sheriff does this in case the tenant won't or can't pay the moving costs and in case any subsequent sale of the tenant's property doesn't produce much money.  If that happens, the rest of the moving and storage costs will be taken out of the landlord's deposit.  The landlord's payment is then added to the landlord's FED judgment against the tenant.  Because of these costs and the delay, most landlords use the second method of property removal. 

The second method for removing the tenant's property is for the landlord to do it himself or herself, after the sheriff removes the tenant.  ORS 105.165.  The landlord must give written notice to the tenant by mailing the notice to the tenant's last known address (which could be the rental unit the tenant has just been evicted from) and to any alternate addresses known to the landlord.  The notice must say that the tenant must pick up their property by a certain date or else the landlord may sell or dispose of it.  The landlord then can remove and store the tenant's property, or leave it in the rental unit.  If the tenant does not pick up their property by the date set by the landlord or contact the landlord to set up an appointment to claim their property, the landlord must wait another 15 days and then may sell or dispose of the tenant's property.   

As part of this post-FED removal process, the landlord's moving and storage expenses can be added to his/her FED judgment against the tenant.  But the landlord cannot make the tenant pay anything in advance before releasing the property to the tenant.  If the landlord violates this law, there is a penalty against the landlord of twice the tenant's actual damages or two month's rent, whichever is more.  ORS 105.165.  The landlord also is responsible for any damages to or loss of the tenant's property caused by the landlord's negligence in moving and storing.   

After the 15 day waiting period, the tenant's property is considered abandoned.  The landlord can now sell the tenant's property or if it is worthless throw or give it away.  Money from the sale of the property can only be used by the landlord to pay for the landlord's moving, storage, and sale expenses, and for any unpaid rent owned to the landlord by the tenant.  If there is any money left over, it is to go to the tenant or, if the tenant cannot be found, to the Lane County general fund.  The landlord cannot use the sale money for any other debt owed to the landlord by the tenant.   

There is no landlord's lien in residential tenancies.  In other words, the landlord cannot hold the tenant's property as security to make the tenant pay a debt owed to the landlord, such as back rent. 

When the tenant's property is removed by the sheriff, the removal is actually done by a private moving company.  The moving company has a lien on the property for its work.  In order to get the property back, the tenant must either pay the moving and storage costs (to the moving company), or get a judge to grant a Claim of Exemption.   

A Claim of Exemption is a legal method to allow people to keep away from their creditors certain items of property that are considered by the law to be necessary for daily living.  In this case, the landlord or the moving company may be the creditor.   

When the sheriff has the tenant's property hauled away by the moving company, the sheriff will give the tenant a notice explaining the tenant's exemption rights and how to file a Claim of Exemption.  (See a separate Legal Aid handout under the title of "How to File a Claim of Exemption.")  The tenant must act quickly, either by paying the storage fees, which increase every day the property is stored, or by filing a Claim of Exemption.  If the tenant has done neither within about 10 days, the moving company can sell the property.   

If the tenant does file a Claim of Exemption, it will take the judge another 10 to 21 days to decide the Claim.  If the Claim of Exemption is granted by the judge, it will allow the tenant to get the property back, but it doesn't get rid of the storage bill.  That is paid out of the landlord's deposit and is added onto the landlord's FED judgment against the tenant. 

When the landlord wins the FED, his/her judgment (the court order) usually includes a decision by the judge that the tenant must pay the landlord's court costs.  These costs normally are the landlord's FED filing fee and the sheriff's service fee.  If the tenant does not get out by the judge-ordered time, these costs may also include the sheriff's fee for service of the Execution Order and Notice of Restitution, the sheriff's charge for removal of the tenant, and the moving company's charge for moving and storing the tenant's property.  For an explanation of the effects of a judgment for money like this, see any one of the three Legal Aid handouts: "Unpaid Debts and Bankruptcy Court;" "Garnishment and Attachment;" and "Repossession." 

Generally, it is wise for the tenant, if at all possible, to get out at the time the judge ordered, thereby avoiding the FED execution process.  Although there are protections for the tenant in this process, there is also a risk of damage to the tenant's property and a lot of hassle and possible expense in getting it back.  In addition, the law says that a tenant who holds over or stays past the date of termination of the tenancy, may be liable to the landlord for twice the landlord's actual damages or two months' rent, whichever is more, if the holdover was intentional and in bad faith.  ORS 90.900(3).  Legal Aid advises tenants to accept the FED judgment and move out by the judge's deadline.

Click here to view Oregon Revised Statutes online. 
 

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.

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