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Eviction Trials

April 30, 2014

 

Filing the Initial “FED”

 

The term "FED" stands for Forcible Entry and Detainer. This is the legal term for an eviction lawsuit filed in court to evict tenants. In every case where the tenant refuses to vacate, the landlord will need to file an FED action to evict the tenant. The FED must be filed in the circuit court of the county where the landlord’s rental property is located.

 

If the tenant refuses to vacate or otherwise fails to comply with a tenancy termination notice, the first step is filing the FED lawsuit. The lawsuit is initiated by the landlord, who files a "complaint" asking the court to grant possession of the rental property to the landlord.

 

The complaint is then served on the tenant along with a summons explaining that the tenant must appear in court to defend the FED lawsuit. By statute, the summons and complaint must be served by the sheriff’s department or a process server.

 

1st Court Appearance

 

Once the tenant is served, both the landlord and tenant must appear in court for the "first appearance hearing." The purpose of the first appearance hearing is to determine whether the tenant intends to contest the lawsuit. If the tenant fails to appear at the first appearance, the landlord receives a default judgment for possession of the premises, along with an award of filing and service fees (but not attorney fees if the tenant does not contest the case).

 

If both the landlord and the tenant (or their attorneys) appear at the first appearance, the court will order the tenant to file an "answer" to the complaint. The tenant’s answer will list any defenses or counterclaims he or she has against the landlord. The case will then be set for trial within 15 days from the date of the first appearance.

 

In most counties, the court will encourage the landlord and tenant to discuss potential settlement of the case before assigning it for trial. Many cases are settled in this manner, which usually results in a court approved settlement in which the tenant agrees to bring the rent current or agrees to move out by a certain date.

 

Scheduling the Trial

 

If the parties cannot agree on a settlement, a trial is scheduled. At trial, both parties are required to present evidence through witnesses and/or exhibits. Some trials are relatively short, lasting less than an hour. Other trials are more complicated and can last a day or longer, particularly if the tenant requests a jury trial.

 

Timeline of the FED Process

 

From filing to finish, the typical FED action usually takes between 3-6 weeks before the landlord physically regains possession of the rental property from the tenant. To summarize, the first appearance hearing is generally set within one week after the FED is filed. If the case goes to trial, the trial date is generally set within two weeks from the first appearance date. Assuming the landlord prevails, it can take another week or more after trial before the landlord is legally entitled to have the sheriff remove the tenant from the property.

 

Most FED actions move rather quickly, although some cases can take longer. Sometimes the court will delay trial because no judges are available to hear the case. Sometimes one of the parties may ask the court to delay trial because a key witness is unavailable or one of the parties or lawyers is unavailable. Some cases may take several months to resolve. Even after trial, there is always the possibility that the losing party will file an appeal. If an appeal is filed, the case will take even longer.

 

Potential Tenant Counterclaims

 

Once the FED is filed, a tenant is entitled to a trial if he or she insists upon one. The tenant is also entitled to file certain counterclaims related to the tenancy, although the types of counterclaims are limited by statute.

 

Most counterclaims relate to alleged "habitability" violations. By statute, landlords must provide habitable living conditions for their tenants. Habitability counterclaims typically seek to recover damages (or an offset in rent) for alleged substandard living conditions. Even when unjustified, the landlord is forced to defend against any such counterclaims.

 

Other types of counterclaims can include illegal entry by the landlord onto the premises, unlawful diminution of services, or unlawful eviction from the premises. The amount of damages recoverable by the tenant is governed by Oregon statutes. A typical damage award is usually two months’ rent or twice the actual damages sustained by the tenant, whichever is greater, for each landlord violation.

 

You should always consult with your insurance company when a tenant files a counterclaim against you as a landlord. Many business insurance policies provide coverage for habitability claims or unlawful eviction claims. You should always forward the tenant’s counterclaims to your insurance company, even if you are unsure as to whether the claims are covered. Early notification is the key to obtaining coverage, in which case your insurance company may be required to provide you with an attorney to defend against the counterclaims (saving you money on attorney fees).

 

Trial

 

Once a trial is scheduled, the parties, attorneys, and their witnesses must appear in person for the trial (affidavits will not work at the actual trial). The landlord presents the eviction case first by calling witnesses and offering any relevant exhibits. The tenant can then call witnesses and offer exhibits, and can also offer evidence on any counterclaims asserted. The landlord has the last opportunity to call rebuttal witnesses, followed by closing arguments.

 

At the end of the trial, the judge or jury will render a verdict in favor of the landlord or tenant, including a verdict on any counterclaims raised by the tenant. If the landlord prevails, the court will issue a judgment of restitution entitling the landlord to recover possession of the rental property from the tenant. The prevailing party is also entitled to an award of attorney fees payable by the losing party. For this reason alone, it is extremely important to have an organized and credible trial presentation.

 

Obtaining a Judgment Against the Tenant

 

Once you receive a judgment of restitution against a tenant, you are entitled to have the sheriff’s department execute on the judgment by forcibly removing the tenant from the rental property. This process takes at least a week, which involves the posting of notices warning the tenant that he or she must move or be removed by the sheriff.

 

 

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