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Kailash Ecovillage, LLC v. Santiago

Court of Appeals of Oregon

July 5, 2018

KAILASH ECOVILLAGE, LLC, Plaintiff-Respondent,
v.
Brian SANTIAGO, AND ALL OTHER OCCUPANTS, Defendant-Appellant. and Ole ERSSON, et al., Plaintiffs,

          Argued and submitted April 26, 2018

          Multnomah County Circuit Court 16LT17112; Angel Lopez, Judge.

          Harry D. Ainsworth argued the cause and fled the brief for appellant.

          Mark G. Passannante argued the cause and fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Linder, Senior Judge.

         Case Summary:

         Tenant appeals a general judgment awarding restitution of the premises-an apartment-to landlord, after the trial court denied tenant's motion to dismiss. Tenant argues that landlord's pretermination notice did not give tenant the statutorily required amount of time to remedy the defects identified in the notice because landlord did not meet the statutory requirements under ORS 90.155(1) for serving tenants by first class mail and attachment ("nail and mail" service), rendering landlord's notice fatally defective and requiring the granting of tenant's motion to dismiss. Held: Landlord did not meet the statutory requirements for using nail and mail service. Under ORS 90.155(1), a landlord is permitted to use nail and mail service only if the parties' rental agreement affords the tenant a "reciprocal right" to use nail and mail service. A rental agreement provides a reciprocal right when it supplies, among other things, an address in the rental agreement at which the landlord will receive notices sent by first class mail. Landlord's designation of "Amrita House" did not supply tenant [292 Or.App. 641] with a mailing address and, therefore, did not afford tenant a meaningful reciprocal right to use nail and mail service.

         Judgment vacated; remanded with instructions to dismiss.

         [292 Or.App. 642] LAGESEN, P. J.

         This is a residential eviction case in which tenant has appealed a general judgment awarding restitution of the premises-an apartment-to landlord; the trial court entered that judgment after denying tenant's motion to dismiss the case. The issue before us is whether landlord's pretermination notice gave tenant the statutorily required amount of time to remedy the defects identified in the notice. The resolution of that issue turns on whether landlord met the statutory requirements under ORS 90.155(1) for serving tenant by first class mail and attachment, a manner of service commonly known as "nail and mail" service. If landlord was not entitled to use nail and mail service, landlord was required to give tenant more time to cure the defects than tenant was afforded in the notice, rendering landlord's notice fatally defective so as to require the granting of tenant's motion to dismiss. For the reasons that follow, we conclude that landlord did not meet the statutory requirements for using nail and mail service. We therefore vacate the judgment and remand to the trial court with directions to dismiss.

         The relevant facts are not disputed, making the question of whether landlord satisfied the statutory requirements for using "nail and mail" service one of law. Accordingly, we review the trial court's resolution of that question for legal error. See generally American Property Management Corporation v. Nikaia, 230 Or.App. 321, 323, 215 P.3d 906 (2009) (so reviewing the question of whether landlord met the statutory requirements for using nail and mail service).

         We start with the law. Under ORS 90.155(1), a landlord is permitted to use nail and mail service only if the parties' rental agreement affords the tenant a "reciprocal right" to use nail and mail service. The statute states:

"(1) Except as provided in ORS 90.300, 90.315, 90.425 and 90.675, where this chapter requires written notice, service or delivery of that written notice shall be executed ...

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