Can I Get the Fence Back if I Agreed to Let a Later Tenant Use It?
Full Question:
Answer:
When a person who is not a landlord agrees to hold property for another, a bailment is created. When the person holding the property, called the bailee, is not being compensated, it is called a gratutous bailment and the bailee must use reasonable care to protect the property.
There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage.
A person who has been unjustly enriched at the expense of another may be required to make restitution to the other. Despite not having a contractual agreement, a trial court may require an individual to make restitution for unjust enrichment if he has received a benefit which would be unconscionable to retain. A person may be deemed to be unjustly enriched if he (or she) has received a benefit, and keeping it would create injustice.
If you wish to use the legal system to resolve your dispute, you may want to review the following general information regarding contract law and breach of contract actions:
Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.
An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.
Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity.
Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.
Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.
Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered.
Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of an ordinary and average person.
The following is an Oregon statute:
90.425 Disposition of personal property abandoned by tenant; notice;
sale; limitation on landlord liability; tax cancellation; storage
agreements; hazardous property.
(1) As used in this section:
(a) "Current market value" means the amount in cash, as determined by
the county assessor, that could reasonably be expected to be paid for a
manufactured dwelling or floating home by an informed buyer to an informed
seller, each acting without compulsion in an arm's-length transaction
occurring on the assessment date for the tax year or on the date of a
subsequent reappraisal by the county assessor.
(b) "Dispose of the personal property" means that, if reasonably
appropriate, the landlord may throw away the property or may give it
without consideration to a nonprofit organization or to a person unrelated
to the landlord. The landlord may not retain the property for personal use
or benefit.
(c) "Goods" includes those goods left inside a recreational vehicle,
manufactured dwelling or floating home or left upon the rental space
outside a recreational vehicle, manufactured dwelling or floating home,
whether the recreational vehicle, dwelling or home is located inside or
outside of a facility.
(d) "Lienholder" means any lienholder of an abandoned recreational
vehicle, manufactured dwelling or floating home, if the lien is of record
or the lienholder is actually known to the landlord.
(e) "Of record" means:
(A) For a recreational vehicle that is not a manufactured structure as
defined in ORS 446.561, that a security interest has been properly
recorded with the Department of Transportation pursuant to ORS
802.200(1)(a)(A) and 803.097.
(B) For a manufactured dwelling or recreational vehicle that is a
manufactured structure as defined in ORS 446.561, that a security interest
has been properly recorded for the manufactured dwelling or recreational
vehicle in the records of the Department of Consumer and Business Services
pursuant to ORS 446.611 or on a certificate of title issued by the
Department of Transportation prior to May 1, 2005.
(C) For a floating home, that a security interest has been properly
recorded with the State Marine Board pursuant to ORS 830.740 to 830.755
for a home registered and titled with the board pursuant to ORS 830.715.
(f) "Owner" means any owner of an abandoned recreational vehicle,
manufactured dwelling or floating home, if different from the tenant and
either of record or actually known to the landlord.
(g) "Personal property" means goods, vehicles and recreational vehicles
and includes manufactured dwellings and floating homes not located in a
facility. "Personal property" does not include manufactured dwellings and
floating homes located in a facility and therefore subject to being
stored, sold or disposed of as provided under ORS 90.675.
(2) A landlord may not store, sell or dispose of abandoned personal
property except as provided by this section. This section governs the
rights and obligations of landlords, tenants and any lienholders or owners
in any personal property abandoned or left upon the premises by the tenant
or any lienholder or owner in the following circumstances:
(a) The tenancy has ended by termination or expiration of a rental
agreement or by relinquishment or abandonment of the premises and the
landlord reasonably believes under all the circumstances that the tenant
has left the personal property upon the premises with no intention of
asserting any further claim to the premises or to the personal property;
(b) The tenant has been absent from the premises continuously for seven
days after termination of a tenancy by a court order that has not been
executed; or
(c) The landlord receives possession of the premises from the sheriff
following restitution pursuant to ORS 105.161.
(3) Prior to selling or disposing of the tenant's personal property
under this section, the landlord must give a written notice to the tenant
that must be:
(a) Personally delivered to the tenant; or
(b) Sent by first class mail addressed and mailed to the tenant at:
(A) The premises;
(B) Any post-office box held by the tenant and actually known to the
landlord; and
(C) The most recent forwarding address if provided by the tenant or
actually known to the landlord.
(4)(a) In addition to the notice required by subsection (3) of this
section, in the case of an abandoned recreational vehicle, manufactured
dwelling or floating home, a landlord shall also give a copy of the notice
described in subsection (3) of this section to:
(A) Any lienholder of the recreational vehicle, manufactured dwelling or
floating home;
(B) Any owner of the recreational vehicle, manufactured dwelling or
floating home;
(C) The tax collector of the county where the manufactured dwelling or
floating home is located; and
(D) The assessor of the county where the manufactured dwelling or
floating home is located.
(b) The landlord shall give the notice copy required by this subsection
by personal delivery or first class mail, except that for any lienholder,
mail service must be both by first class mail and by certified mail with
return receipt requested.
(c) A notice to lienholders under paragraph (a)(A) of this subsection
must be sent to each lienholder at each address:
(A) Actually known to the landlord;
(B) Of record; and
(C) Provided to the landlord by the lienholder in a written notice that
identifies the personal property subject to the lien and that was sent to
the landlord by certified mail with return receipt requested within the
preceding five years. The notice must identify the personal property by
describing the physical address of the property.
(5) The notice required under subsection (3) of this section must state
that:
(a) The personal property left upon the premises is considered
abandoned;
(b) The tenant or any lienholder or owner must contact the landlord by a
specified date, as provided in subsection (6) of this section, to arrange
for the removal of the abandoned personal property;
(c) The personal property is stored at a place of safekeeping, except
that if the property includes a manufactured dwelling or floating home,
the dwelling or home must be stored on the rented space;
(d) The tenant or any lienholder or owner, except as provided by
subsection (18) of this section, may arrange for removal of the personal
property by contacting the landlord at a described telephone number or
address on or before the specified date;
(e) The landlord shall make the personal property available for removal
by the tenant or any lienholder or owner, except as provided by
subsection (18) of this section, by appointment at reasonable times;
(f) If the personal property is considered to be abandoned pursuant to
subsection (2)(a) or (b) of this section, the landlord may require payment
of removal and storage charges, as provided by subsection (7)(d) of this
section, prior to releasing the personal property to the tenant or any
lienholder or owner;
(g) If the personal property is considered to be abandoned pursuant to
subsection (2)(c) of this section, the landlord may not require payment of
storage charges prior to releasing the personal property;
(h) If the tenant or any lienholder or owner fails to contact the
landlord by the specified date, or after that contact, fails to remove the
personal property within 30 days for recreational vehicles, manufactured
dwellings and floating homes or 15 days for all other personal property,
the landlord may sell or dispose of the personal property. If the landlord
reasonably believes that the personal property will be eligible for
disposal pursuant to subsection (10)(b) of this section and the landlord
intends to dispose of the property if the property is not claimed, the
notice shall state that belief and intent; and
(i) If the personal property includes a recreational vehicle,
manufactured dwelling or floating home and if applicable, there is a
lienholder or owner that has a right to claim the recreational vehicle,
dwelling or home, except as provided by subsection (18) of this section.
(6) For purposes of subsection (5) of this section, the specified date
by which a tenant, lienholder or owner must contact a landlord to arrange
for the disposition of abandoned personal property is:
(a) For abandoned recreational vehicles, manufactured dwellings or
floating homes, not less than 45 days after personal delivery or mailing
of the notice; or
(b) For all other abandoned personal property, not less than five days
after personal delivery or eight days after mailing of the notice.
(7) After notifying the tenant as required by subsection (3) of this
section, the landlord:
(a) Shall store any abandoned manufactured dwelling or floating home on
the rented space and shall exercise reasonable care for the dwelling or
home;
(b) Shall store all other abandoned personal property of the tenant,
including goods left inside a recreational vehicle, manufactured dwelling
or floating home or left upon the rented space outside a recreational
vehicle, dwelling or home, in a place of safekeeping and shall exercise
reasonable care for the personal property, except that the landlord may:
(A) Promptly dispose of rotting food; and
(B) Allow an animal control agency to remove any abandoned pets or
livestock. If an animal control agency will not remove the abandoned pets
or livestock, the landlord shall exercise reasonable care for the animals
given all the circumstances, including the type and condition of the
animals, and may give the animals to an agency that is willing and able to
care for the animals, such as a humane society or similar organization;
(c) Except for manufactured dwellings and floating homes, may store the
abandoned personal property at the dwelling unit, move and store it
elsewhere on the premises or move and store it at a commercial storage
company or other place of safekeeping; and
(d) Is entitled to reasonable or actual storage charges and costs
incidental to storage or disposal, including any cost of removal to a
place of storage. In the case of an abandoned manufactured dwelling or
floating home, the storage charge may be no greater than the monthly space
rent last payable by the tenant.
(8) If a tenant, lienholder or owner, upon the receipt of the notice
provided by subsection (3) or (4) of this section or otherwise, responds
by actual notice to the landlord on or before the specified date in the
landlord's notice that the tenant, lienholder or owner intends to remove
the personal property from the premises or from the place of safekeeping,
the landlord must make that personal property available for removal by the
tenant, lienholder or owner by appointment at reasonable times during the
15 days or, in the case of a recreational vehicle, manufactured dwelling
or floating home, 30 days following the date of the response, subject to
subsection (18) of this section. If the personal property is considered to
be abandoned pursuant to subsection (2)(a) or (b) of this section, but not
pursuant to subsection (2)(c) of this section, the landlord may require
payment of removal and storage charges, as provided in subsection (7)(d)
of this section, prior to allowing the tenant, lienholder or owner to
remove the personal property. Acceptance by a landlord of such payment
does not operate to create or reinstate a tenancy or create a waiver
pursuant to ORS 90.412 or 90.417.
(9) Except as provided in subsections (18) to (20) of this section, if
the tenant, lienholder or owner of a recreational vehicle, manufactured
dwelling or floating home does not respond within the time provided by the
landlord's notice, or the tenant, lienholder or owner does not remove the
personal property within the time required by subsection (8) of this
section or by any date agreed to with the landlord, whichever is later,
the tenant's, lienholder's or owner's personal property is conclusively
presumed to be abandoned. The tenant and any lienholder or owner that have
been given notice pursuant to subsection (3) or (4) of this section shall,
except with regard to the distribution of sale proceeds pursuant to
subsection (13) of this section, have no further right, title or interest
to the personal property and may not claim or sell the property.
(10) If the personal property is presumed to be abandoned under
subsection (9) of this section, the landlord then may:
(a) Sell the personal property at a public or private sale, provided
that prior to the sale of a recreational vehicle, manufactured dwelling or
floating home:
(A) The landlord may seek to transfer ownership of record of the
personal property by complying with the requirements of the appropriate
state agency; and
(B) The landlord shall:
(i) Place a notice in a newspaper of general circulation in the county in which the recreational vehicle, manufactured dwelling or floating home
is located. The notice shall state:
(I) That the recreational vehicle, manufactured dwelling or floating
home is abandoned;
(II) The tenant's and owner's name, if of record or actually known to
the landlord;
(III) The address and any space number where the recreational vehicle,
manufactured dwelling or floating home is located, and any plate,
registration or other identification number for a recreational vehicle or
floating home noted on the certificate of title, if actually known to the
landlord;
(IV) Whether the sale is by private bidding or public auction;
(V) Whether the landlord is accepting sealed bids and, if so, the last
date on which bids will be accepted; and
(VI) The name and telephone number of the person to contact to inspect
the recreational vehicle, manufactured dwelling or floating home;
(ii) At a reasonable time prior to the sale, give a copy of the notice
required by sub-subparagraph (i) of this subparagraph to the tenant and to
any lienholder and owner, by personal delivery or first class mail, except
that for any lienholder, mail service must be by first class mail with
certificate of mailing;
(iii) Obtain an affidavit of publication from the newspaper to show that
the notice required under sub-subparagraph (i) of this subparagraph ran in
the newspaper at least one day in each of two consecutive weeks prior to
the date scheduled for the sale or the last date bids will be accepted;
and
(iv) Obtain written proof from the county that all property taxes and
assessments on the manufactured dwelling or floating home have been paid
or, if not paid, that the county has authorized the sale, with the sale
proceeds to be distributed pursuant to subsection (13) of this section;
(b) Destroy or otherwise dispose of the personal property if the
landlord determines that:
(A) For a manufactured dwelling or floating home, the current market
value of the property is $8,000 or less as determined by the county
assessor; or
(B) For all other personal property, the reasonable current fair market
value is $500 or less or so low that the cost of storage and conducting a
public sale probably exceeds the amount that would be realized from the
sale; or
(c) Consistent with paragraphs (a) and (b) of this subsection, sell
certain items and destroy or otherwise dispose of the remaining personal
property.
(11)(a) A public or private sale authorized by this section must:
(A) For a recreational vehicle, manufactured dwelling or floating home,
be conducted consistent with the terms listed in subsection (10)(a)(B)(i)
of this section. Every aspect of the sale including the method, manner,
time, place and terms must be commercially reasonable; or
(B) For all other personal property, be conducted under the provisions
of ORS 79.0610.
(b) If there is no buyer at a sale of a manufactured dwelling or
floating home, the personal property is considered to be worth $8,000 or
less, regardless of current market value, and the landlord shall destroy
or otherwise dispose of the personal property.
(12) Notwithstanding ORS 446.155(1) and (2), unless a landlord
intentionally misrepresents the condition of a manufactured dwelling or
floating home, the landlord is not liable for the condition of the
dwelling or home to:
(a) A buyer of the dwelling or home at a sale pursuant to
subsection (10)(a) of this section, with or without consideration; or
(b) A person or nonprofit organization to whom the landlord gives the
dwelling or home pursuant to subsection (1)(b), (10)(b) or (11)(b) of this
section.
(13)(a) The landlord may deduct from the proceeds of the sale:
(A) The reasonable or actual cost of notice, storage and sale; and
(B) Unpaid rent.
(b) If the sale was of a manufactured dwelling or floating home, after
deducting the amounts listed in paragraph (a) of this subsection, the
landlord shall remit the remaining proceeds, if any, to the county tax
collector to the extent of any unpaid property taxes and assessments owed
on the dwelling or home.
(c) If the sale was of a recreational vehicle, manufactured dwelling or
floating home, after deducting the amounts listed in paragraphs (a) and
(b) of this subsection, if applicable, the landlord shall remit the
remaining proceeds, if any, to any lienholder to the extent of any unpaid
balance owed on the lien on the recreational vehicle, dwelling or home.
(d) After deducting the amounts listed in paragraphs (a), (b) and (c) of
this subsection, if applicable, the landlord shall remit to the tenant or
owner the remaining proceeds, if any, together with an itemized
accounting.
(e) If the tenant or owner cannot after due diligence be found, the
landlord shall deposit the remaining proceeds with the county treasurer of
the county in which the sale occurred. If not claimed within three years,
the deposited proceeds revert to the general fund of the county and are
available for general purposes.
(14) The county tax collector shall cancel all unpaid property taxes and
assessments owed on a manufactured dwelling or floating home, as provided
under ORS 311.790, only under one of the following circumstances:
(a) The landlord disposes of the manufactured dwelling or floating home
after a determination described in subsection (10)(b) of this section.
(b) There is no buyer of the manufactured dwelling or floating home at a
sale described under subsection (11) of this section.
(c)(A) There is a buyer of the manufactured dwelling or floating home at
a sale described under subsection (11) of this section;
(B) The current market value of the manufactured dwelling or floating
home is $8,000 or less; and
(C) The proceeds of the sale are insufficient to satisfy the unpaid
property taxes and assessments owed on the dwelling or home after
distribution of the proceeds pursuant to subsection (13) of this section.
(d)(A) The landlord buys the manufactured dwelling or floating home at a
sale described under subsection (11) of this section;
(B) The current market value of the manufactured dwelling or floating
home is more than $8,000;
(C) The proceeds of the sale are insufficient to satisfy the unpaid
property taxes and assessments owed on the manufactured dwelling or
floating home after distribution of the proceeds pursuant to
subsection (13) of this section; and
(D) The landlord disposes of the manufactured dwelling or floating home.
(15) The landlord is not responsible for any loss to the tenant,
lienholder or owner resulting from storage of personal property in
compliance with this section unless the loss was caused by the landlord's
deliberate or negligent act. In the event of a deliberate and malicious
violation, the landlord is liable for twice the actual damages sustained
by the tenant, lienholder or owner.
(16) Complete compliance in good faith with this section shall
constitute a complete defense in any action brought by a tenant,
lienholder or owner against a landlord for loss or damage to such personal
property disposed of pursuant to this section.
(17) If a landlord does not comply with this section:
(a) The tenant is relieved of any liability for damage to the premises
caused by conduct that was not deliberate, intentional or grossly
negligent and for unpaid rent and may recover from the landlord up to
twice the actual damages sustained by the tenant;
(b) A lienholder or owner aggrieved by the noncompliance may recover
from the landlord the actual damages sustained by the lienholder or owner.
ORS 90.255 does not authorize an award of attorney fees to the prevailing
party in any action arising under this paragraph; and
(c) A county tax collector aggrieved by the noncompliance may recover
from the landlord the actual damages sustained by the tax collector, if
the noncompliance is part of an effort by the landlord to defraud the tax
collector. ORS 90.255 does not authorize an award of attorney fees to the
prevailing party in any action arising under this paragraph.
(18) In the case of an abandoned recreational vehicle, manufactured
dwelling or floating home, the provisions of this section regarding the
rights and responsibilities of a tenant to the abandoned vehicle, dwelling
or home also apply to any lienholder except that the lienholder may not
sell or remove the vehicle, dwelling or home unless:
(a) The lienholder has foreclosed its lien on the recreational vehicle,
manufactured dwelling or floating home;
(b) The tenant or a personal representative or designated person
described in subsection (20) of this section has waived all rights under
this section pursuant to subsection (25) of this section; or
(c) The notice and response periods provided by subsections (6) and (8)
of this section have expired.
(19)(a) In the case of an abandoned manufactured dwelling or floating
home but not including a dwelling or home abandoned following a
termination pursuant to ORS 90.429 and except as provided by
subsection (20)(d) and (e) of this section, if a lienholder makes a
timely response to a notice of abandoned personal property pursuant to
subsections (6) and (8) of this section and so requests, a landlord
shall enter into a written storage agreement with the lienholder
providing that the dwelling or home may not be sold or disposed of by
the landlord for up to 12 months. A storage agreement entitles the
lienholder to store the personal property on the previously rented space
during the term of the agreement, but does not entitle anyone to occupy
the personal property.
(b) The lienholder's right to a storage agreement arises upon the
failure of the tenant, owner or, in the case of a deceased tenant, the
personal representative, designated person, heir or devisee to remove or
sell the dwelling or home within the allotted time.
(c) To exercise the right to a storage agreement under this subsection,
in addition to contacting the landlord with a timely response as described
in paragraph (a) of this subsection, the lienholder must enter into the
proposed storage agreement within 60 days after the landlord gives a copy
of the agreement to the lienholder. The landlord shall give a copy of the
proposed storage agreement to the lienholder in the same manner as
provided by subsection (4)(b) of this section. The landlord may include a
copy of the proposed storage agreement with the notice of abandoned
property required by subsection (4) of this section. A lienholder enters
into a storage agreement by signing a copy of the agreement provided by
the landlord and personally delivering or mailing the signed copy to the
landlord within the 60-day period.
(d) The storage agreement may require, in addition to other provisions
agreed to by the landlord and the lienholder, that:
(A) The lienholder make timely periodic payment of all storage charges,
as described in subsection (7)(d) of this section, accruing from the
commencement of the 45-day period described in subsection (6) of this
section. A storage charge may include a utility or service charge, as
described in ORS 90.532, if limited to charges for electricity, water,
sewer service and natural gas and if incidental to the storage of personal
property. A storage charge may not be due more frequently than monthly;
(B) The lienholder pay a late charge or fee for failure to pay a storage
charge by the date required in the agreement, if the amount of the late
charge is no greater than for late charges described in the rental
agreement between the landlord and the tenant; and
(C) The lienholder maintain the personal property and the space on which
the personal property is stored in a manner consistent with the rights and
obligations described in the rental agreement between the landlord and the
tenant.
(e) During the term of an agreement described under this subsection, the
lienholder has the right to remove or sell the property, subject to the
provisions of the lien. Selling the property includes a sale to a
purchaser who wishes to leave the dwelling or home on the rented space and
become a tenant, subject to any conditions previously agreed to by the
landlord and tenant regarding the landlord's approval of a purchaser or,
if there was no such agreement, any reasonable conditions by the landlord
regarding approval of any purchaser who wishes to leave the dwelling or
home on the rented space and become a tenant. The landlord also may
condition approval for occupancy of any purchaser of the property upon
payment of all unpaid storage charges and maintenance costs.
(f)(A) If the lienholder violates the storage agreement, the landlord
may terminate the agreement by giving at least 90 days' written notice to
the lienholder stating facts sufficient to notify the lienholder of the
reason for the termination. Unless the lienholder corrects the violation
within the notice period, the agreement terminates as provided and the
landlord may sell or dispose of the dwelling or home without further
notice to the lienholder.
(B) After a landlord gives a termination notice pursuant to
subparagraph (A) of this paragraph for failure of the lienholder to pay a
storage charge and the lienholder corrects the violation, if the
lienholder again violates the storage agreement by failing to pay a
subsequent storage charge, the landlord may terminate the agreement by
giving at least 30 days' written notice to the lienholder stating facts
sufficient to notify the lienholder of the reason for termination. Unless
the lienholder corrects the violation within the notice period, the
agreement terminates as provided and the landlord may sell or dispose of
the property without further notice to the lienholder.
(C) A lienholder may terminate a storage agreement at any time upon at
least 14 days' written notice to the landlord and may remove the property
from the rented space if the lienholder has paid all storage charges and
other charges as provided in the agreement.
(g) Upon the failure of a lienholder to enter into a storage agreement
as provided by this subsection or upon termination of an agreement, unless
the parties otherwise agree or the lienholder has sold or removed the
manufactured dwelling or floating home, the landlord may sell or dispose
of the property pursuant to this section without further notice to the
lienholder.
(20) If the personal property consists of an abandoned manufactured
dwelling or floating home and is considered abandoned as a result of the
death of a tenant who was the only tenant and who owned the dwelling or
home, this section applies, except as follows:
(a) Any personal representative named in a will or appointed by a court
to act for the deceased tenant or any person designated in writing by the
tenant to be contacted by the landlord in the event of the tenant's death
has the same rights and responsibilities regarding the abandoned dwelling
or home as a tenant.
(b) The notice required by subsection (3) of this section must be:
(A) Sent by first class mail to the deceased tenant at the premises; and
(B) Personally delivered or sent by first class mail to any personal
representative or designated person if actually known to the landlord.
(c) The notice described in subsection (5) of this section must refer to
any personal representative or designated person, instead of the deceased
tenant, and must incorporate the provisions of this subsection.
(d) If a personal representative, designated person or other person
entitled to possession of the property, such as an heir or devisee,
responds by actual notice to a landlord within the 45-day period provided
by subsection (6) of this section and so requests, the landlord shall
enter into a written storage agreement with the representative or person
providing that the dwelling or home may not be sold or disposed of by the
landlord for up to 90 days or until conclusion of any probate proceedings,
whichever is later. A storage agreement entitles the representative or
person to store the personal property on the previously rented space
during the term of the agreement, but does not entitle anyone to occupy
the personal property. If such an agreement is entered, the landlord may
not enter a similar agreement with a lienholder pursuant to
subsection (19) of this section until the agreement with the personal
representative or designated person ends.
(e) If a personal representative or other person requests that a
landlord enter into a storage agreement, subsection (19)(c), (d) and
(f)(C) of this section applies, with the representative or person having
the rights and responsibilities of a lienholder with regard to the storage
agreement.
(f) During the term of an agreement described under paragraph (d) of
this subsection, the representative or person has the right to remove or
sell the dwelling or home, including a sale to a purchaser or a transfer
to an heir or devisee where the purchaser, heir or devisee wishes to leave
the dwelling or home on the rented space and become a tenant, subject to
any conditions previously agreed to by the landlord and tenant regarding
the landlord's approval for occupancy of a purchaser, heir or devisee or,
if there was no such agreement, any reasonable conditions by the landlord
regarding approval for occupancy of any purchaser, heir or devisee who
wishes to leave the dwelling or home on the rented space and become a
tenant. The landlord also may condition approval for occupancy of any
purchaser, heir or devisee of the dwelling or home upon payment of all
unpaid storage charges and maintenance costs.
(g) If the representative or person violates the storage agreement, the
landlord may terminate the agreement by giving at least 30 days' written
notice to the representative or person stating facts sufficient to notify
the representative or person of the reason for the termination. Unless the
representative or person corrects the violation within the notice period,
the agreement terminates as provided and the landlord may sell or dispose
of the dwelling or home without further notice to the representative or
person.
(h) Upon the failure of a representative or person to enter into a
storage agreement as provided by this subsection or upon termination of an
agreement, unless the parties otherwise agree or the representative or
person has sold or removed the manufactured dwelling or floating home, the
landlord may sell or dispose of the property pursuant to this section
without further notice to the representative or person.
(21) If a governmental agency determines that the condition of a
manufactured dwelling, floating home or recreational vehicle abandoned
under this section constitutes an extreme health or safety hazard under
state or local law and the agency determines that the hazard endangers
others in the immediate vicinity and requires quick removal of the
property, the landlord may sell or dispose of the property pursuant to
this subsection. The landlord shall comply with all provisions of this
section, except as follows:
(a) The date provided in subsection (6) of this section by which a
tenant, lienholder, owner, personal representative or designated person
must contact a landlord to arrange for the disposition of the property
must be not less than 15 days after personal delivery or mailing of the
notice required by subsection (3) of this section.
(b) The date provided in subsections (8) and (9) of this section by
which a tenant, lienholder, owner, personal representative or designated
person must remove the property must be not less than seven days after the
tenant, lienholder, owner, personal representative or designated person
contacts the landlord.
(c) The notice required by subsection (3) of this section must be as
provided in subsection (5) of this section, except that:
(A) The dates and deadlines in the notice for contacting the landlord
and removing the property must be consistent with this subsection;
(B) The notice must state that a governmental agency has determined that
the property constitutes an extreme health or safety hazard and must be
removed quickly; and
(C) The landlord shall attach a copy of the agency's determination to
the notice.
(d) If the tenant, a lienholder, owner, personal representative or
designated person does not remove the property within the time allowed,
the landlord or a buyer at a sale by the landlord under subsection (11) of
this section shall promptly remove the property from the facility.
(e) A landlord is not required to enter into a storage agreement with a
lienholder, owner, personal representative or designated person pursuant
to subsection (19) of this section.
(22)(a) If an official or agency referred to in ORS 453.876 notifies the
landlord that the official or agency has determined that all or part of
the premises is unfit for use as a result of the presence of an illegal
drug manufacturing site involving methamphetamine, and the landlord
complies with this subsection, the landlord is not required to comply with
subsections (1) to (21) and (23) to (26) of this section with regard to
personal property left on the portion of the premises that the official or
agency has determined to be unfit for use.
(b) Upon receiving notice from an official or agency determining the
premises to be unfit for use, the landlord shall promptly give written
notice to the tenant as provided in subsection (3) of this section. The
landlord shall also attach a copy of the notice in a secure manner to the
main entrance of the dwelling unit. The notice to the tenant shall include
a copy of the official's or agency's notice and state:
(A) That the premises, or a portion of the premises, has been determined
by an official or agency to be unfit for use due to contamination from the
manufacture of methamphetamine and that as a result subsections (1) to
(21) and (23) to (26) of this section do not apply to personal property
left on any portion of the premises determined to be unfit for use;
(B) That the landlord has hired, or will hire, a contractor to assess
the level of contamination of the site and to decontaminate the site;
(C) That upon hiring the contractor, the landlord will provide to the;
tenant the name, address and telephone number of the contractor; and
(D) That the tenant may contact the contractor to determine whether any
of the tenant's personal property may be removed from the premises or may
be decontaminated at the tenant's expense and then removed.
(c) To the extent consistent with rules of the Department of Human
Services, the contractor may release personal property to the tenant.
(d) If the contractor and the department determine that the premises or
the tenant's personal property is not unfit for use, upon notification by
the department of the determination, the landlord shall comply with
subsections (1) to (21) and (23) to (26) of this section for any personal
property left on the premises.
(e) Except as provided in paragraph (d) of this subsection, the landlord
is not responsible for storing or returning any personal property left on
the portion of the premises that is unfit for use.
(23) In the case of an abandoned recreational vehicle, manufactured
dwelling or floating home that is owned by someone other than the tenant,
the provisions of this section regarding the rights and responsibilities
of a tenant to the abandoned vehicle, dwelling or home also apply to that
owner, with regard only to the vehicle, dwelling or home, and not to any
goods left inside or outside the vehicle, dwelling or home.
(24) In the case of an abandoned motor vehicle, the procedure authorized
by ORS 98.830 and 98.835 for removal of abandoned motor vehicles from
private property may be used by a landlord as an alternative to the
procedures required in this section.
(25)(a) A landlord may sell or dispose of a tenant's abandoned personal
property without complying with subsections (1) to (24) and (26) of this
section if, after termination of the tenancy or no more than seven days
prior to the termination of the tenancy, the following parties so agree in
a writing entered into in good faith:
(A) The landlord;
(B) The tenant, or for an abandonment as the result of the death of a
tenant who was the only tenant, the personal representative, designated
person or other person entitled to possession of the personal property,
such as an heir or devisee, as described in subsection (20) of this
section; and
(C) In the case of a manufactured dwelling, floating home or
recreational vehicle, any owner and any lienholder.
(b) A landlord may not, as part of a rental agreement, require a tenant,
a personal representative, a designated person or any lienholder or owner
to waive any right provided by this section.
(26) Until personal property is conclusively presumed to be abandoned
under subsection (9) of this section, a landlord does not have a lien
pursuant to ORS 87.152 for storing the personal property.
