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CONFEDERATED TRIBES of the COOS, LOWER UMPQUA AND SIUSLAW INDIANS TRIBAL CODE
TITLE
8 - PROPERTY
CHAPTER
8-3 EVICTION
8-3-1
Jurisdiction and Scope
(a) This
chapter shall govern relationships between all landlords and tenants and over
all property whether private or public real property within the lands of the
Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribes).
(b) Any
action for rent due or other breach or default of a legal or rental or purchase
agreement shall be brought pursuant to this Chapter and applicable sections of
this Code.
8-3-2
Definitions
(a)
"Tribes" - The
Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians.
(b)
"Tribal Court" - The Confederated Tribes of Coos, Lower Umpqua and
Siuslaw Indians Tribal Court as established by the laws of the Tribes.
(c) "Lessor"
- refer to the Tribes or to any other person or entity who shall have an
interest in real property which for a limited time has been leased or rented to
another. The term lessor shall also
include an Indian Housing Authority that has leased real property under a Mutual
Help and Occupancy Agreement, Rental Lease Agreement, or other similar
arrangement where the tenant may, on certain conditions, obtain ownership of the
occupied property at the end of occupancy under the agreement.
(d)
"Secretary" - the Secretary of the United States Department of Housing
and Urban Development (HUD) or his or her designee, attorney or agent, or the
assignee of the Secretary.
(f)
"Tenant" - any person who occupies real property under a lease rental
agreement with a lessor as defined in this section.
(f)
"Unlawful Detainer Action" - a suit brought in the Tribal Court to
terminate a tenant’s interest in real property and/or to evict any person from
occupancy of real property.
(g)
"Writ of Restitution" - an order of the Tribal Court:
(1) Restoring an owner or lessor or the Secretary to the possession of
real
property; and
(2) Evicting a tenant or other occupant.
(h)
"Nuisance" - the maintenance of real property of a condition which:
(1) Unreasonably threatens the health or safety of the public or
neighboring land users: or
(2) Unreasonably and substantially interferes with the ability of
neighboring property users to enjoy reasonable use and occupancy of their
property.
(i)
"Waste" - spoil or destruction by a tenant of land, buildings,
gardens, trees or other improvements that result in injury to the lessor’s
interest in the property.
(j)
"Gender" (Singular or Plural) - Reference to persons by terms denoting
one sex shall be taken as referring to either sex.
Reference to persons by a term denoting the singular shall include the
plural.
(k)
"First Class Mail" - does
not include certified or registered mail, or any other form of mail that may
delay or hinder actual delivery of mail to the recipient.
(l)
"Informal Dispute Resolution" - means, but is not limited to,
consultation between the lessor and the tenant, or mediation utilizing the
services of a third party.
(m)
"Squatter" - a person occupying a dwelling unit who is not so entitled
under a rental agreement or who is not authorized by the tenant to occupy that
dwelling unit.
8-3-3
Exclusions From Application of This Chapter
Unless
created to avoid the application of this chapter, the following arrangement is
not governed by this chapter: Occupancy
by a squatter.
8-3-4
Notification of Suit
Commencement
of suit shall be pursuant to the provisions of 1-1-90 (Rules of Practice in
Actions and Proceedings Before the Tribal Court) of this Code provided that any
employee of the Tribes may make personal service of the documents required to
carry out the provisions of this Chapter.
8-3-5
Defenses
In any
action under this Chapter, it shall not be a defense to such action that the
tenant or occupant is unable to pay rent or other monthly payments when due for
the right of occupying the premises unless the lease or other agreement in force
with reference to the property at issue provides otherwise.
8-3-6 Law
To Be Applied
In any
action under this chapter, the Court shall apply this Chapter’s applicable
provisions and the provisions of any and all leases or agreements, rules and
regulations in force with regard to the property or tenancy that is the subject
matter of the action. In the
absence of Tribal law on any particular subject, the Court may look to
provisions in federal law or general law of the states for guidance in
fashioning a remedy.
8-3-7
Eviction Procedures
The
procedures set out in this Chapter shall apply to any action to terminate a
landlord tenant relationship under Chapter 8-3.
8-3-8
Unlawful Detainer
A tenant
or other occupier of land shall be guilty of unlawful detainer if such person
shall continue to occupy real property under any of the following situations:
(a) After
the expiration of the term of the lease or other agreement; or
(b) Upon
entering onto or remaining on the real property of another without the
permission of the owner and without having any substantial claim of a lease or
title to the property; or
(c) Upon a
substantial and material breach of a condition of a rental agreement. No
substantial and material breach of a condition of a rental agreement may result
in a termination of the rental agreement unless the rental agreement so
provides; or
(d) After
failing to pay rent.
8-3-9 Notice
(a) A
party may commence an action in Tribal Court for any violation of section
8-3-8 (a),
(b), (c) when the following notice provisions have been provided for:
(1) When the lease of the property is for an indefinite time with the
rent to be paid monthly
or by some other period and the lessor had given notice of termination
of
the tenancy at least thirty (30) days prior to the end of such month or period;
(2) When the lease of the property is for a definite time with rent to be
paid monthly or by some other period and
the lessor had given notice of termination
of
the tenancy at least thirty (30) days prior to the expiration of the term of
the lease or other agreement;
(3) When such a person shall continue to fail to keep or perform any
condition or convenant of the lease or agreement
under which the property is held after he
has been given notice under this
section to either perform such condition or
convenant or to surrender the
property.
(4) When such person continues to commit or to permit waste upon or
maintain a nuisance upon the occupied property after having been given notice in
the alternative either to cease such
waste or maintenance of nuisance or to surrender the property.
(b) No
action may be commenced in Tribal Court for failure to pay rent under section
8-3-8 (d)
when due until after having received a thirty- (30) day notice, the tenant or
occupier remains in possession of the property contrary to the terms of
the notice as
follows:
(1) When such person has received notice:
(A) that he is in default in the payment of rent; and
(B) requiring him, in the alternative, to pay the rent or surrender
possession of the occupied property, shall fail to pay the rent or
surrender possession.
8-3-10
Service or Delivery of Written Notice
Where this
Chapter requires written notice, service or delivery of that written notice
shall be executed by one or more of the following methods:
(a)
Personal delivery to the lessor or tenant; or
(b)
First-class mail to the lessor or tenant. If
a notice is served by mail, the minimum period for compliance or termination of
a tenancy, as appropriate, shall be extended by three (3) days, and the notice
shall include the extension in the period provided.
(c) A
lessor or tenant may utilize alternative methods of notifying the other so long
as the alternative method is in addition to one of the service methods described
in subsection (a) and (b) of this section.
8-3-11
Calculation of Notice Periods
Where there are references in this chapter to periods and
notices based on a number of days, those days shall be calculated by consecutive
calendar days, not including the initial day of service by including the last
day until midnight of that last day. Where
there are references in this chapter to periods or notices based on a number of
hours, those hours shall be calculated in consecutive clock hours, beginning
immediately upon service.
8-3-12
Complaint and Summons Contents
The
complaint and summons to commence an action for unlawful detainer shall, in
addition to those procedural requirements imposed by Court Rule or under the
general procedures for the commencement of an action in Tribal Court, shall
comply with the following;
(a) The
complaint signed by the owner, lessor, the Secretary, agent or attorney stating:
(1) The facts on which recovery is based; and
(2) Describing the property so that it can be identified with reasonable
certainty;
and
(3) Any Claim for damages or compensation due form the person(s) to be
evicted.
8-3-13
Hearing
Notwithstanding
any other provision in this Code or Court Rule, the Tribal Court shall set an
unlawful detainer action for hearing expeditiously. The hearing date shall be set no later than thirty (30) days
following the date that the defendant must respond to the suit.
8-3-14 Power
of the Tribal Court
(a) The
Tribal Court shall enter a Writ of Restitution if:
(1) Notices as required by this Chapter have been given; and
(2) The Tribal Court finds that the occupier of the real property is
guilty of an act of
unlawful detainer.
(b) Upon
the issuance of a Writ of Restitution, the Tribal Court shall have authority to
enter against the defendant(s) a judgment for the following: back rent, unpaid
utilities, charges due the Tribes Indian Housing Authority or land owner under
any lease or occupancy agreement (not including under a leasehold mortgage) and
for damages caused by the defendant(s) to the property other than ordinary wear
and tear. The Tribal Court shall
have authority to award to the prevailing party his costs and reasonable
attorney’s fees in bringing suit under this Chapter.
8-3-15
Continuance in Cases Involving the Secretary
Except by agreement of all parties, there shall be no
continuances in cases involving the Secretary.
8-3-16 Enforcement
Upon the
issuance of a Writ of Restitution by the Tribal Court, tribal law enforcement
officers, or if there are no tribal law enforcement officers, state law
enforcement officers if there exists an intergovernmental agreement allowing for
the enforcement of Tribal Court Orders, shall enforce the Writ of Restitution by
evicting the defendant(s) and their property from the premises which are
unlawfully occupied. In cases
involving the Secretary, the Secretary may request that the Writ of Restitution
be enforced not later than sixty (60) days after the date of service of the
summons and complaint.
8-3-17
Alternate Remedies
In those
cases in which the persons or property are subject to the jurisdiction of the
courts of the State of Oregon or the United States, the remedies and procedures
provided for by this Chapter are in the alternative to the remedies and
procedures provided by the laws of the State of Oregon or the United States.
APPENDIX
A
LEGISLATIVE
HISTORY AND EDITORIAL CHANGES
EVICTION
CODE
LEGISLATIVE
HISTORY AND EDITORIAL CHANGES
The Tribal
Council of the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians
enacted the Eviction code in Resolution ____, Ordinance No. ____, on June 9,
2002.
The
Eviction Code replaced the Hearings and Arbitration Policy enacted by the Coos,
Lower Umpqua and Siuslaw Housing authority on June 29, 1998, by Resolution ____.
Tribal Council Amended the Hearings and Arbitration Policy on October 30,
2000, by Resolution 00-085.
During the
preparation of this compilation, the following editorial changes were made to
the Eviction Code:
1.
The title was changed from "Hearing and Arbitration Policy" to
"Eviction Code".
2.
Substantive changes were made to the eviction procedure resulting from
the establishment of the Tribal Court.