Norton v. Kees

                                 161

    Argued and submitted May 20, reversed and remanded July 8, 2021


                    Justin W. NORTON,
                    Plaintiff-Respondent,
                              v.
                        Lori KEES,
                     Bruce Thouvenel,
                  and all other occupants,
                   Defendants-Appellants.
                Douglas County Circuit Court
                    19LT08072; A171510
                             

  Jason R. Thomas, Judge pro tempore.
   Harry D. Ainsworth argued the cause and filed the brief
for appellants.
   Dan G. McKinney argued the cause for respondent. Also
on the brief was DC Law.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
  Reversed and remanded.
162                                             Norton v. Kees

         PER CURIAM
          This is a residential eviction case in which tenants
appeal a general judgment awarding restitution of the premises to landlord. The trial court entered that judgment after
rejecting tenants’ contention that landlord’s pretermination
notice did not give tenants the statutorily required amount
of time to cure tenants’ nonpayment of rent. Because landlord used first class mail and attachment to a designated
location—nail-and-mail—service, on the facts of this case,
whether landlord gave tenants the right amount of time to
cure turns on whether the parties’ rental agreement afforded
tenants a reciprocal right to use nail-and-mail service also.
ORS 90.155(1); Kailash Ecovillage, LLC v. Santiago, 

, 

, rev den, 

 (2018)
(explaining requirement and content of reciprocal right to
nail-and-mail service). The trial court concluded that the
rental agreement afforded tenants the statutorily required
reciprocal right. Reviewing for legal error whether the lease
affords a reciprocal right to nail-and-mail service under
ORS 90.155(1), Kailash Ecovillage, LLC, 

,
we conclude otherwise. We therefore reverse and remand.
         To provide an effective reciprocal right to use
nail-and-mail service, a rental agreement must contain
the information necessary to give the tenant “a clear and
effective method … to effectuate nail and mail service.”
American Property Management Corporation v. Nikaia, 

, 

 (2009). “That standard …
requires the landlord, among other things, to designate an
address in the rental agreement at which the landlord will
receive notices sent by first class mail.” Kailash Ecovillage,
LLC, 

; ORS 90.155(1)(c)(B) (mail service address must be one “designated in the written rental
agreement”). “If the landlord fails to supply the tenant with
such an address in the rental agreement, then the landlord
is not entitled to use nail and mail service ….” Kailash
Ecovillage, LLC, 

.
        In this case, Paragraph 20 of the parties’ form
rental agreement addresses nail-and-mail service by the
tenant. As filled out, it states: “A notice from lessee to lessor
is deemed served on the day it is both mailed by first class
Cite as 

 (2021)                            163

mail to the above owner/agent (see 18) and also attached
securely to the following location [handwritten street
address].” Paragraph 18, in turn, supplies a space in which
to identify the name of the “owner (or agent for service)” and
that person’s address and phone number. But landlord left it
blank except for a phone number. Consequently, the agreement does not clearly designate an address for mail service.
         Landlord argues, and the trial court concluded,
that the inclusion of landlord’s address in other parts of
the lease satisfies ORS 90.155(1). They reason that tenants
could reasonably assume that the address listed in the other
locations was the one to be used for mailing, even though the
agreement does not say that that is the address for service.
That may be so, but the statute crafted by the legislature
requires a landlord to “designate” an address for mailing
in the written rental agreement to create an effective reciprocal right to nail-and-mail service. In other words, it is
landlord’s responsibility to clearly communicate a mailing
address for service. That did not happen here.
        Reversed and remanded.