76 June 5, 2024 No. 377
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Dan SCHULTZ,
Plaintiff-Respondent,
v.
Joi SCOTT
and all occupants,
Defendant-Appellant.
Umatilla County Circuit Court
22LT00054; A178013
Eva J. Temple, Judge.
Argued and submitted July 27, 2023.
Elizabeth Lewis argued the cause for appellant. Also on
the brief was Emily Rena-Dozier.
Nick R. Blanc argued the cause for respondent. Also on
the brief was The Blanc Firm, LLC.
Before Joyce, Presiding Judge, and Jacquot, Judge, and
Armstrong, Senior Judge.
JACQUOT, J.
Affirmed.
Cite as 333 Or App 76 (2024) 77
78 Schultz v. Scott
JACQUOT, J.
In this case under the Residential Landlord Tenant
Act (RLTA), plaintiff landlord sought to evict defendant
tenant from her dwelling unit, which was part of a house,
because landlord intended to move into the house and occupy
it as his primary residence. The trial court entered judgment in favor of landlord. On appeal, in two assignments
of error, tenant contends that the court erred in (1) denying
her motion for involuntary dismissal because the court did
not receive a copy of the notice of termination of tenancy into
evidence, instead taking judicial notice of it, and (2) misconstruing ORS 90.427(5)(c). ORS 90.427(5)(c) allows landlords,
with specific notice and subject to other requirements, to
evict a tenant when “[t]he landlord intends for the landlord
or a member of the landlord’s immediate family to occupy
the dwelling unit as a primary residence” and “the landlord
does not own a comparable unit in the same building that
is available for occupancy at the same time that the tenant
receives notice to terminate the tenancy.”
As to tenant’s first assignment of error, although
the trial court denied the motion to dismiss based on a plain
error—taking judicial notice of the contents of the notice of
eviction—we decline to exercise our discretion to correct the
error because to do so now would give tenant more relief
than she would have obtained if she had objected to the error
in the trial court. As to tenant’s second assignment of error,
we reject tenant’s narrow contention that ORS 90.427(5)(c)’s
reference to a “comparable unit in the same building” means
any unit in the same building as the tenant’s unit, and we
conclude that the trial court correctly determined that ORS
90.427(5)(c) was satisfied by landlord’s intention to occupy
the whole house—a single integrated living space that
included the space that made up tenant’s dwelling unit—as
a primary residence. Accordingly, we affirm.1
1
We reject landlord’s assertion that this appeal is moot because, after the
trial court’s decision, tenant voluntarily vacated the premises. In an action,
like this one, for forcible entry and detainer, physical possession and the right
to possession are distinct issues. Greene v. Hren, 224 Or App 223, 228,
197 P3d
1118 (2008). While tenant’s vacation of the premises has resolved the issue of
physical possession, the issue of whether the trial court properly determined
whether landlord met his burden in asserting his right to possession is not moot.
Pendergrass v. Fagan,
218 Or App 533, 536-37,
180 P3d 110, rev den, 344 Or
Cite as
333 Or App 76 (2024) 79
JUDICIAL NOTICE
We begin with tenant’s first assignment of error.
We summarize the procedural facts relevant to this assignment; we provide additional facts below, in our discussion of
the second assignment of error.
Landlord sought to evict tenant pursuant to ORS
90.427(5)(c). To prove their case, a landlord must prove that
the tenant received a notice that included specific information. C.O. Homes, LLC v. Cleveland, 366 Or 207, 218,
460
P3d 494 (2020) (“[T]o prove that a landlord is entitled to possession, the landlord must prove … that it delivered a particular, valid notice that effectively terminated the rental
agreement.”); see also ORS 90.427 (specifying notice and
other requirements).
At the start of trial, landlord asked the court to take
judicial notice of the notice of termination of tenancy that
had been filed with the complaint, which was available in
the court file. Tenant did not object, and the court took judicial notice of the notice of termination. Landlord then presented his case, testifying, among other things, that he had
had the notice served on tenant. After landlord’s case was
complete, tenant moved to dismiss “on the basis that [landlord] did not introduce the notice into evidence.” The court
responded that landlord had asked the court to take judicial
notice of the notice, that it was “part of the Court’s record,”
and that it was talking about the document “attached to
the complaint.” Tenant did not raise any further objection.
Tenant then testified. On cross-examination, she acknowledged that she had received the notice of termination.
On appeal, tenant contends that the trial court
erred in denying the motion for involuntary dismissal based
on the substance of the judicially noticed notice of termination. Tenant contends that she preserved the argument that
she makes on appeal and, alternatively, requests that, if we
conclude that the error was not preserved, we correct it as
plain error.
670 (2008). Additionally, tenant remains liable for court-awarded costs and fees,
and that liability depends on our determination on the merits of the question on
appeal. Ramsum v. Woldridge, 222 Or App 109, 114-15,
192 P3d 851 (2008).
80 Schultz v. Scott
We conclude that the error was not preserved. In
response to tenant’s motion to dismiss, the court explained
that the notice, and its contents, were in the record because
the court had taken judicial notice of them. At that point,
tenant had an opportunity to alert the court and landlord
to their mistake in relying on judicial notice to make the
substance of the notice of termination part of the trial court
record, but she did not do that. See Peeples v. Lampert, 345
Or 209, 219,
191 P3d 637 (2008) (“[p]reservation gives a
trial court the chance to consider and rule on a contention,
thereby possibly avoiding an error altogether” and “ensures
fairness to an opposing party, by permitting the opposing
party to respond to a contention”).
“Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 331 Or 335,
341,
15 P3d 22 (2000); ORAP 5.45(1) (allowing discretionary
review of “plain” errors). An error is “plain” when it is an
error of law, the legal point is obvious and not reasonably
in dispute, and the error is apparent on the record without having to choose among competing inferences. State v.
Vanornum,
354 Or 614, 629,
317 P3d 889 (2013). It is a matter of discretion whether we will correct a plain error. State
v. Gornick,
340 Or 160, 166,
130 P3d 780 (2006).
We agree with tenant that the court plainly erred
in relying on the substance of the judicially noticed notice of
termination to deny the motion for involuntary dismissal.
See Frady v. Frady, 185 Or App 245, 248,
58 P3d 849 (2002)
(although a court may take judicial notice of a document in a
court file, it is “not authorized by that means to consider as
evidence the contents of that document”); see also Petersen v.
Crook County,
172 Or App 44, 51,
17 P3d 563 (2001) (the reason for that rule is that, while it may be indisputable that a
document entered into the court file exists, the truth of the
statements that document contains may be in dispute (citing Laird C. Kirkpatrick, Oregon Evidence 47 (3d ed 1996))).
Nevertheless, we decline to correct the error
because to do so would not serve the ends of justice. If tenant
had alerted the court to its error, the court easily could,
and likely would, have remedied it by allowing landlord to
reopen his case, authenticate the notice, and formally put a
Cite as 333 Or App 76 (2024) 81
copy of it into evidence. To correct the error now would give
tenant more relief than she would have received if she had
raised the issue in the trial court. For similar reasons, the
error was not grave, because tenant had access to the notice
and had both the motivation and the opportunity to challenge the giving of and the contents of the notice during her
testimony. Accordingly, we decline to correct the error.
CONSTRUCTION OF ORS 90.427(5)(c)
We next consider tenant’s second assignment of
error. Tenant challenges the trial court’s construction of
ORS 90.427(5)(c), an issue that she raised during closing
argument to the trial court. Under these circumstances,
we consider her closing argument to have included a challenge to the trial court’s instructions to itself. Accordingly,
“we review to determine whether the court instructed itself
incorrectly as to the law.” Phillips Sisson Industries, Inc. v.
Hysell, 317 Or App 440, 446,
506 P3d 1139 (2022) (internal quotation marks omitted). That presents a question of
statutory interpretation that we review for legal error. See
State v. Gaines,
346 Or 160, 162,
206 P3d 1042 (2009) (so
reviewing).
For background, we begin with the relevant facts,
which are undisputed. The building in question is a house,
and, as we will describe below, tenant lived in part of it.
When she received the notice of termination from landlord,
the rest of the house was unoccupied. Landlord notified
tenant that her tenancy would be terminated pursuant to
ORS 90.427(5)(c) because he intended to move into the house
and occupy the house as his primary residence.
Landlord testified that the house had previously
belonged to his parents and he had grown up there. His parents had “built a living room in the back,” attached to what
was previously a bedroom, and turned the bedroom into a
laundry room and a bathroom. The back area was separated
from the remainder of the house by an interior door that
could be locked. The laundry room and garage were shared,
and the house had one mailing address. Tenant testified
that she lived in “the small studio in the rear.”
82 Schultz v. Scott
In closing argument, tenant contended that, for two
reasons, landlord had not complied with ORS 90.427(5)(c):
First, landlord owned a second unit—that is, the front part
of the house—in the same building as tenant’s unit and it
was available for occupancy when he gave her notice. Second,
in tenant’s view, the statute requires the landlord to intend
to occupy only the tenant’s dwelling unit as a primary residence. Tenant contended that, because landlord intended to
occupy both tenant’s unit and the rest of the house, he did
not intend “to occupy [tenant’s] dwelling unit as a primary
residence.” ORS 90.427(5)(c).
Regarding the second reason, tenant argued, among
other things, that, under the statutory scheme of which ORS
90.427(5)(c) is a part, which we will discuss below, landlord
could evict tenant to remodel the house to “turn it back into
a single-family residence,” but that, because it was presently
separated into two dwelling units by the locked door, landlord could not evict tenant in order to occupy the whole house.
The trial court disagreed with tenant’s contention
that the house would need to be remodeled to be used as a
single residence. It stated that the property “was a single-family dwelling.” Tenant’s counsel responded, “That was
converted into two dwelling units.” The court replied, “By
locking a door. So he wants to unlock the door so he can live
in the whole house again.”
The court found that tenant’s part of the house was
integrated into the house as a whole; as the court stated,
“[i]t’s one house.” Given that finding, along with testimony
from landlord, which the court credited, that he intended to
occupy the whole house as his primary residence, the court
decided that landlord had made his case. The court did not
expressly rule on tenant’s first argument for dismissal, that
landlord owned a “comparable unit” in the same building
that was available for occupancy when he gave tenant notice,
but implicitly rejected that argument.
On appeal, tenant reprises both of her arguments,
contending that the court erred in construing ORS 90.427
(5)(c).
Cite as 333 Or App 76 (2024) 83
We begin with tenant’s contention that the court
incorrectly construed “comparable unit” in determining
that landlord had shown that he did not own “a comparable
unit in the same building.” On appeal, tenant’s argument
about that requirement is extremely narrow: She argues
that landlord owned a “comparable unit in the same building” solely because he owned two units in the same building. We reject that argument. Regardless of what, exactly,
“comparable” means in this context, two units are not comparable solely because they are in the same building; rather,
the statute requires them to be both comparable and in the
same building. ORS 90.427(5)(c) (requiring that “the landlord does not own a comparable unit in the same building
that is available for occupancy at the same time that the
tenant receives notice to terminate the tenancy” (emphasis
added)).
The parties also dispute what it means for a landlord to intend “to occupy the dwelling unit as a primary
residence.”2 ORS 90.427(5)(c). As explained above, there was
evidence that, although tenant’s dwelling unit could be separated from the rest of the house by locking the door, when
the door was unlocked, the two parts of the house constituted one living space; as the court noted, “[i]t’s one house.”
Landlord argues that ORS 90.427(5)(c) applies here because
he intended to occupy the whole house, which included
tenant’s dwelling unit, “as a primary residence.” Id. In landlord’s view, when a single living space, like a house, may be
used as multiple dwelling units and the tenant occupies only
part of it, the legislature did not intend to limit a landlord’s
occupancy of the space “as a primary residence” to only the
tenant’s dwelling unit.
For her part, tenant contends that the legislature
intended “a primary residence” to mean only the dwelling
unit occupied by the tenant. Thus, she argues, in this case,
notwithstanding that her dwelling unit was an integrated
2
The landlord must intend “for the landlord or a member of the landlord’s
immediate family to occupy the dwelling unit as a primary residence.” ORS
90.427(5)(c). We recognize that the landlord may intend either for the landlord to
occupy the dwelling unit or for a member of the landlord’s immediate family to do
so. However, for simplicity, in our discussion, we refer to the landlord’s intention
to occupy the unit as shorthand for the landlord’s intention for the landlord or a
member of their immediate family to do so.
84 Schultz v. Scott
part of the rest of the house when the door was unlocked,
landlord had to intend to occupy only her dwelling unit “as a
primary residence”; his intention to occupy the whole house,
including her dwelling unit, did not suffice under the statute.
That presents a question of statutory construction
that we consider by applying our well-established methodology in an effort to discern the intention of the legislature.
Gaines, 346 Or at 171-72. We consider the text in context
and may consider legislative history to the extent that we
find it helpful.
Id. If, after those steps, a statute remains
ambiguous, we apply maxims of statutory construction to
resolve the ambiguity.
Id.
We begin with the text. The statute allows a landlord to terminate a tenancy, with proper notice, if “[t]he
landlord intends for the landlord or a member of the landlord’s immediate family to occupy the dwelling unit as a primary residence.” ORS 90.427(5)(c). “Dwelling unit” means “a
structure or the part of a structure that is used as a home,
residence or sleeping place by one person who maintains a
household or by two or more persons who maintain a common household.” ORS 90.100(14).3
We note that the definition of “dwelling unit” is
extraordinarily broad. Under that definition, whether a
space is a separate dwelling unit depends on the use to
which it is put. A house with multiple occupants is a single
dwelling unit when it is “used as a home [or] residence …
by … persons who maintain a common household.” ORS
90.100(14). But the same house may contain multiple dwelling units if each of its bedrooms is “used as a … sleeping
place by one person who maintains a household.”4 Id.; see also
3
The relevant text of ORS 90.100, including the definitions of “dwelling unit,”
“roomer,” and “tenant,” is the same now as it was at the time of trial. However, other
amendments to ORS 90.100 have resulted in changes of the numbering of those
definitions. Because the text remains the same, we use the current numbering.
4
The breadth and flexibility of the definition of “dwelling unit”—particularly the fact that the number of dwelling units in a structure depends on how
the spaces are being used at a particular time—is in tension with provisions in
which the legislature appears to contemplate that a given structure contains a
readily ascertainable and fixed number of dwelling units. E.g., ORS 90.427(6)(b)
(providing an exception from a certain requirement for landlords who own “four
or fewer residential dwelling units subject to this chapter”). However, that issue
does not affect our analysis here.
Cite as 333 Or App 76 (2024) 85
ORS 90.100(43) (defining “roomer” as “a person occupying
a dwelling unit that does not include a toilet and either a
bathtub or a shower and a refrigerator, stove and kitchen,
all provided by the landlord, and where one or more of these
facilities are used in common by occupants in the structure);
ORS 90.100(51) (defining “tenant” to include a roomer).
Under the statutory definition of “dwelling unit,” in
this case, the front and back areas of the house were separate dwelling units while tenant lived there, because she did
not share a household with anyone living in the rest of the
house. However, there was evidence that landlord’s intention was to occupy the whole house as a single dwelling unit:
As the court found, landlord intended to unlock the door
and use the whole house as a single integrated home, which
would be his primary residence.
Under these circumstances, the parties’ competing constructions of what it means for a landlord to intend
“to occupy the dwelling unit as a primary residence,” ORS
90.427(5)(c), represent a disagreement about the perspective from which the legislature intended courts to consider
the use of the tenant’s dwelling unit. Tenant contends that
the assessment is from the tenant’s perspective, as it refers
to the tenant’s dwelling unit, and so should be limited by
the way the tenant uses the space. Thus, in her view, the
landlord is limited to occupying the space that, given the
tenant’s use, constitutes the tenant’s dwelling unit—in this
case, the back area of the house, consisting of the second
“living room” and a bathroom.
By contrast, landlord contends, and the court held,
that the assessment is from the perspective of the landlord,
whose intent is at issue, and so should reflect the way the
landlord intends to occupy the space. Landlord asserts that
a landlord intends to occupy “the dwelling unit as a primary
residence” when the space that is the tenant’s dwelling unit
is also an integrated part of a larger space that is configured
for use as a single dwelling unit, and the landlord intends to
occupy it that way.
The text is ambiguous. As tenant points out, it
refers to the landlord’s intent to occupy “the dwelling unit
86 Schultz v. Scott
as a primary residence.” That refers to the tenant’s dwelling
unit, which suggests that the assessment should be from the
tenant’s perspective. Additionally, the other requirement of
ORS 90.427(5)(c)—that “the landlord does not own a comparable unit in the same building that is available for occupancy at the same time that the tenant receives notice to terminate the tenancy”—explicitly identifies the time that the
tenant receives notice (and, thus, a time when the tenant is
occupying their dwelling unit) as the relevant point in time
for that requirement.
However, as landlord points out, the main question
for purposes of ORS 90.427(5)(c) is how the landlord intends
to occupy the space—that is, whether the landlord intends
to occupy it “as a primary residence.” That focus on the landlord’s plans suggests that the assessment should be from the
landlord’s perspective.
With that in mind, we consider the broader statutory
context, as well as the legislative history of ORS 90.427(5)
(c). The provision at issue was enacted as part of Senate
Bill (SB) 608 (2019), in which the legislature substantially
changed the existing RLTA to enact broad protections for
tenants, including removing the ability of landlords, after
the first year of tenancy, to evict tenants without stating a
cause.5 Or Laws 2019, ch 1. Proponents of the bill explained
that it provided a “just cause” standard for evictions, which
would protect tenants from arbitrary or discriminatory evictions, the destabilizing force of which have a dramatic negative effect on people’s lives. Testimony, House Committee
on Human Services and Housing, SB 608, Feb 18, 2019,
Ex 5 (statement of Sybil Hebb, Director of Policy Advocacy,
Oregon Law Center).
In place of the former authority that landlords had
to evict tenants without providing a reason, the legislature
codified a few “landlord-based causes” for eviction. Audio
Recording, Senate Committee on Housing, SB 608, Feb 4,
2019, at 00:21:17 (statement of Sybil Hebb). The proponents
of the bill explained that those reasons protected the ability
5
SB 608 made those changes within the existing RLTA and retained the
original definition of “dwelling unit.” See Or Laws 2019, ch 1, § 6.
Cite as 333 Or App 76 (2024) 87
of landlords to “make business and personal decisions about
the use of their property.”
Id. In addition to the provision
that we are construing, ORS 90.427(5)(c), those reasons are
as follows: the landlord intends to demolish the unit or convert it to a nonresidential use, ORS 90.427(5)(a); the landlord intends to make repairs or renovations that will render the dwelling unit unfit for occupancy or the unit is unfit
for occupancy and needs repairs, ORS 90.427(5)(b); and the
landlord has accepted an offer to purchase from a person
who intends in good faith to use the dwelling unit as their
primary residence, ORS 90.427(5)(d). Another provision in
the bill allows a landlord who has their primary residence
in a building or on property with no more than two dwelling
units to evict a tenant from the second dwelling unit without stating any reason. ORS 90.427(8).6
6
ORS 90.427(5) provides that, with certain notice and subject to other
requirements, a landlord may terminate month-to-month and fixed-term tenancies after the first year if:
“(a) The landlord intends to demolish the dwelling unit or convert the
dwelling unit to a use other than residential use within a reasonable time;
“(b) The landlord intends to undertake repairs or renovations to the
dwelling unit within a reasonable time and:
“(A) The premises is unsafe or unfit for occupancy; or
“(B) The dwelling unit will be unsafe or unfit for occupancy during the
repairs or renovations;
“(c) The landlord intends for the landlord or a member of the landlord’s
immediate family to occupy the dwelling unit as a primary residence and
the landlord does not own a comparable unit in the same building that is
available for occupancy at the same time that the tenant receives notice to
terminate the tenancy; or
“(d) The landlord has:
“(A) Accepted an offer to purchase the dwelling unit separately from any
other dwelling unit from a person who intends in good faith to occupy the
dwelling unit as the person’s primary residence; and
“(B) Provided the notice and written evidence of the offer to purchase the
dwelling unit, to the tenant not more than 120 days after accepting the offer
to purchase.”
As relevant here, ORS 90.427(8) provides:
“If the tenancy is for occupancy in a dwelling unit that is located in the
same building or on the same property as the landlord’s primary residence,
and the building or the property contains not more than two dwelling units,
the landlord may terminate the tenancy at any time after the first year of
occupancy:
“(a) For a month-to-month tenancy:
“…
88 Schultz v. Scott
Although the purpose of SB 608 was to protect tenants, the inclusion of landlord causes shows that the legislature prioritized property owners’ ability to occupy their own
residential property as their primary residence above tenants’ interest in avoiding eviction. Under ORS 90.427(5)(b),
landlords may evict tenants in order to renovate a property—a provision that, as tenant noted in her argument in the
trial court, would appear to include evicting to reconfigure
multiple dwelling units, even including those that are not
already integrated into a single living space—into a space
for the landlord to occupy as a single unit. In ORS 90.427(5)
(d), the legislature ensured that a buyer of residential property will be able to occupy the property as a primary residence immediately when the purchase is complete. In ORS
90.427(5)(c), the provision we are construing, the legislature
unambiguously provided that property owners who intend to
use their property as a primary residence for themselves or
their immediate family members have priority over tenants.
(The question we are answering concerns only the scope of
that priority.) Finally, in ORS 90.427(8), the legislature prioritized certain property owners’ interests in choosing who
occupies their property with them over tenants’ interests in
avoiding no-cause eviction.
In light of the legislature’s concern for allowing
property owners to use their residential property as their
primary residence, we agree with landlord and the trial
court that the legislature intended courts applying ORS
90.427(5)(c) to focus on how the landlord intends to occupy
the space in order to determine whether the landlord intends
to occupy “the dwelling unit as a primary residence.” If the
landlord intends to occupy as a primary residence a single
integrated living space that includes the space that makes
“(B) Without cause by giving the tenant notice in writing not less than
60 days prior to the date designated in the notice for the termination of the
tenancy[.]
“…
“(b) For a fixed term tenancy:
“…
“(B) At any time during the fixed term, without cause by giving the
tenant notice in writing not less than 30 days prior to the specified ending
date for the fixed term, or 30 days prior to the date designated in the notice
for the termination of the tenancy, whichever is later.”
Cite as 333 Or App 76 (2024) 89
up the tenant’s dwelling unit,7 the landlord intends to occupy
the tenant’s dwelling unit “as a primary residence.”
As explained above, in this case, the court found
that tenant’s dwelling unit was integrated with the rest
of the house, such that, with the door unlocked, the whole
house could be occupied as a single primary residence. It
also found that landlord intended to occupy the whole house
as his primary residence. Given those findings, the trial
court did not err in determining that ORS 90.427(5)(c) was
satisfied.
Affirmed.
7
In a situation in which the landlord intends to occupy the tenant’s dwelling
unit and another dwelling unit or units that are not integrated with the tenant’s
dwelling unit—for example, multiple apartments that are separated from each
other by a publicly accessible hallway or some other structural separation, we
agree with tenant’s argument below that the landlord could not rely on ORS
90.427(5)(c). A person’s intention to occupy a living space “as a primary residence”
does not encompass an intention to occupy multiple structurally separated spaces
as a single home.
