OREGON

LIEN LAWS BY STATE
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OREGON REVISED STATUTES

1995 EDITION

CHAPTER 87 STATUTORY LIENS

CONSTRUCTION LIENS

87.001 Short Title

87.005 Definitions for ORS 87.001 to 87.060 and 87.075 to 87.093

87.010 Construction Liens; Who is Entitled to Lien

87.015 Land and Interests Therein Subject to Lien; Leaseholds

87.018 Delivery of Notices

87.021 Notice to Owners; Notice from Owner to Original Contractor; Effect of Failure to Give Notice

87.023 Notice of Right to Lien; Form of Notice

87.025 Priority of Perfected Liens; Right to Sell Improvements Separately from Land; Notice to Mortgagee; List of Materials or Supplies

87.027 Right of Owner to Demand List of Services, Materials, Equipment and Labor; Penalty for Failure to Provide List

87.030 Effect of Owner Having Knowledge of Improvement; Notice of Nonresponsibility

87.035 Perfecting Lien; Filing Claim of Lien; Contents of Claim

87.039 Notice of Filing Claim of Lien; Effect of Failure to Give Notice

87.045 Completion Date of Improvement; Notice of Completion, Abandonment or Nonabandonment; Contents of Notice

87.050 Recording

87.055 Duration of Lien; When Suit to Enforce Lien Commences

87.057 Notice of Intent to Foreclose; List of Materials Furnished and Statement of Prices; Effect of Failure to Give Notice

87.058 Stay of Foreclosure Proceedings; Requirements; Procedure; Duration of Stay

87.060 Foreclosure; Right to Jury Trial; Distribution of Proceeds of Foreclosure Sale

87.070 Amount of Recovery by Contractor; Respective Rights of Contractor and Owner

87.075 Exemption of Building Materials from Attachment by Third Persons

87.076 Bond or Deposit of Money; Amount; Demand for Release of Lien; Effect

87.078 Notice of Filing Bond or Depositing Money; Contents of Notice; Effect of Failure to Give Notice

87.081 Filing Affidavit with County Officer

87.083 Foreclosure After Filing of Bond or Deposit of Money; Effect of Filing or Deposit; Disposition of Bond or Money

87.086 Determination of Adequacy of Bond

87.088 Return of Bond or Money

87.093 Information Notice to Owner; Adoption by Construction Contractors Board; Contents; When Notice Must Be Given; Penalty for Failure to Provide

LIENS GENERALLY

87.142 Definitions for ORS 87.142 to 87.490, 87.705, 87.710 and 87.910

87.146 Priorities of Liens

MISCELLANEOUS PROVISIONS

87.910 Cost of Preparing Lien Notice

87.920 Recording of Document not to Create Lien, Affect Title or Constitute Notice Except as Authorized by Law

CHAPTER 88 FORECLOSURE OF LIENS GENERALLY

88.010 Foreclosure of Liens by Suit; Decree for Amount of Debt

88.020 Joinder of Foreclosure Suit Involving Realty With Suit to Quiet Title

88.030 Other Lienholders and Debtors as Defendants; Effect of Failure to Redeem

88.040 Foreclosure Suit During and After Action for Debt

88.050 Decree Where More Than One Lien on Same Property

88.060 Enforcement of Decree

88.070 Decree Foreclosing Purchase Money Mortgage on Real Property

88.075 When Mortgage is Considered a Purchase Money Mortgage

88.080 Sale and Redemption; Effect of Sheriff’s Deed

88.090 Decree When Debt Payable in Installments

88.100 Payment of Amount Due Before Foreclosure Sale; Decree for Payment of Installment Not Due

88.110 Duration of Real Property Mortgage Lien; When Suit for Foreclosure Barred

88.120 When Foreclosure Not Barred by ORS 88.110

88.710 Definitions for ORS 88.710 to 88.740

88.720 Acquisition, Administration and Disposal by State of Property Subject to Lien Held by State

88.740 Investment of Oregon War Veterans’ Bond Sinking Account Surplus Moneys

OREGON REVISED STATUTES

1995 EDITION

CHAPTER 87 STATUTORY LIENS

CONSTRUCTION LIENS

87.001 Short Title

ORS 87.001 to 87.060 and 87.075 to 87.093 shall be known and may be cited as the Construction Lien Law.

87.005 Definitions for ORS 87.001 to 87.060 and 87.075 to 87.093

As used in ORS 87.001 to 87.060 and 87.075 to 87.093:

(1) “Commencement of the improvement” means the first actual preparation or construction upon the site or the first delivery to the site of materials of such substantial character as to notify interested persons that preparation or construction upon the site has begun or is about to begin.

(2) “Construction” includes creation or making of an improvement, and alteration, partial construction and repairs done in and upon an improvement.

(3) “Construction agent” includes a contractor, architect, builder or other person having charge of construction or preparation.

(4) “Contractor” means a person who contracts on predetermined terms to be responsible for the performance of all or part of a job of preparation or construction in accordance with established specifications or plans, retaining control of means, method and manner of accomplishing the desired result, and who provides:

(a) Labor at the site; or

(b) Materials, supplies and labor at the site.

(5) “Improvement” includes any building, wharf, bridge, ditch, flume, reservoir, well, tunnel, fence, street, sidewalk, machinery, aqueduct and all other structures and superstructures, whenever it can be made applicable thereto.

(6) “Mortgagee” means a person who has a valid subsisting mortgage of record or trust deed of record securing a loan upon land or an improvement.

(7) “Original contractor” means a contractor who has a contractual relationship with the owner.

(8) “Owner” means:

(a) A person who is or claims to be the owner in fee or a lesser estate of the land on which preparation or construction is performed; or

(b) A person who has entered into a contract for the purchase of an interest in the land or improvement thereon sought to be charged with a lien created under ORS 87.010; or

(c) A person to whom a valid subsisting lease on land or an improvement is made, and who possesses an interest in the land or improvement by reason of that lease.

(9) “Preparation” includes excavating, surveying, landscaping, demolition and detachment of existing structures, leveling, filling in, and other preparation of land for construction.

(10) “Site” means the land on which construction or preparation is performed.

(11) “Subcontractor” means a contractor who has no direct contractual relationship with the owner.

87.010 Construction Liens; Who is Entitled to Lien

(1) Any person performing labor upon, transporting or furnishing any material to be used in, or renting equipment used in the construction of any improvement shall have a lien upon the improvement for the labor, transportation or material furnished or equipment rented at the instance of the owner of the improvement or the construction agent of the owner.

(2) Any person who engages in or rents equipment for the preparation of a lot or parcel of land, or improves or rents equipment for the improvement of a street or road adjoining a lot or parcel of land at the request of the owner of the lot or parcel, shall have a lien upon the land for work done, materials furnished or equipment rented.

(3) A lien for rented equipment under subsection (1) or (2) of this section shall be limited to the reasonable rental value of the equipment notwithstanding the terms of the underlying rental agreement.

(4) Trustees of an employee benefit plan shall have a lien upon the improvement for the amount of contributions, due to labor performed on that improvement, required to be paid by agreement or otherwise into a fund of the employee benefit plan.

(5) An architect, landscape architect, land surveyor or registered engineer who, at the request of the owner or an agent of the owner, prepares plans, drawings or specifications that are intended for use in or to facilitate the construction of an improvement or who supervises the construction shall have a lien upon the land and structures necessary for the use of the plans, drawings or specifications so provided or supervision performed.

(6) A landscape architect, land surveyor or other person who prepares plans, drawings, surveys or specifications that are used for the landscaping or preparation of a lot or parcel of land or who supervises the landscaping or preparation shall have a lien upon the land for the plans, drawings, surveys or specifications used or supervision performed.

87.015 Land and Interests Therein Subject to Lien; Leaseholds

(1) The site together with the land that may be required for the convenient use and occupation of the improvement constructed on the site, to be determined by the court at the time of the foreclosure of the lien, shall also be subject to the liens created under ORS 87.010 (1), (4) and (5) if, at the time of the commencement of the improvement, the person who caused the improvement to be constructed was the owner of that site and land. If the person owned less than a fee-simple estate in the site and land, then only the interest of the person therein shall be subject to the lien.

(2) If a lien created under ORS 87.010 (1), (4) and (5) is claimed against a unit as defined in ORS 100.005 to 100.910, the Oregon Condominium Act, the common elements appertaining to that unit are also subject to the lien.

(3) When the interest of the person who caused the improvement to be constructed is a leasehold interest, and that person has forfeited the rights of the person thereto, the purchaser of the improvement and leasehold term at any sale under the provisions of ORS 87.001 to 87.060 and 87.075 to 87.093, is deemed to be the assignee of the leasehold term, and may pay the lessor all arrears of rent or other money and costs due under the lease. If the lessor regains possession of the property, or obtains judgment for the possession thereof prior to the commencement of construction of the improvement, the purchaser may remove the improvement within 30 days after the purchaser purchases it, and the owner of the land shall receive the rent due the owner, payable out of the proceeds of the sale, according to the terms of the lease, down to the time of removal.

87.018 Delivery of Notices

All notices required under ORS 87.001 to 87.060 and 87.075 to 87.093 shall be in writing and delivered in person or delivered by registered or certified mail except for the “Information Notice to Owner” described in ORS 87.093 which may also be proved by a United States Postal Service certificate of mailing.

[Note: 87.018 was enacted into law by the Legislative Assembly but was not added to or made a part of 87.005 to 87.075 by legislative action. See Preface to Oregon Revised Statutes for further explanation.]

87.021 Notice to Owners; Notice from Owner to Original Contractor; Effect of Failure to Give Notice

(1) Except when material, equipment, services or labor described in ORS 87.010 (1) to (3), (5) and (6) is furnished at the request of the owner, a person furnishing any materials, equipment, services or labor described in ORS 87.010 (1) to (3), (5) and (6) for which a lien may be perfected under ORS 87.035 shall give a notice of right to a lien to the owner of the site. The notice of right to a lien may be given at any time during the progress of the improvement, but the notice only protects the right to perfect a lien for materials, equipment and labor or services provided after a date which is eight days, not including Saturdays, Sundays and other holidays as defined in ORS 187.010, before the notice is delivered or mailed. However, no lien is created under ORS 87.010 (5) or (6) for any services provided for an owner-occupied residence at the request of an agent of the owner.

(2) The notice required by subsection (1) of this section shall be substantially in the form set forth in ORS 87.023.

(3)(a) Except as provided in paragraph (b) of this subsection, a lien created under ORS 87.010 (1) to (3), (5) or (6) may be perfected under ORS 87.035 only to the extent that the notice required by subsection (1) of this section is given.

(b) A person who performs labor upon a commercial improvement or provides labor and material for a commercial improvement or who rents equipment used in the construction of a commercial improvement need not give the notice required by subsection (1) of this section in order to perfect a lien created under ORS 87.010. As used in this paragraph:

(A) “Commercial improvement” means any structure or building not used or intended to be used as a residential building, or other improvements to a site on which such a structure or building is to be located.

(B) “Residential building” means a building or structure that is or will be occupied by the owner as a residence and that contains not more than four units capable of being used as residences or homes.

(4) Unless otherwise agreed or the lien claimant who is required to give the notice under subsection (1) of this section is in privity with the original contractor, when a provision in an agreement for the construction of a commercial improvement requires the original contractor to hold an owner harmless or to indemnify an owner for a lien created under ORS 87.010 and perfected under ORS 87.035, that provision is not enforceable as to any lien which requires that a notice under this section be given to the owner unless a copy of the notice is delivered pursuant to ORS 87.018 to the original contractor not later than 10 days after its receipt by the owner.

87.023 Notice of Right to Lien; Form of Notice

The notice of right to a lien required under ORS 87.021 shall include, but not be limited to, the following information and shall be substantially in the following form:

NOTICE OF RIGHT TO A LIEN.

WARNING: READ THIS NOTICE.

PROTECT YOURSELF FROM PAYING ANY CONTRACTOR OR SUPPLIER TWICE FOR THE SAME SERVICE.

To:_________ Date of mailing: _____

Owner_______________________________

Owner’s address

This is to inform you that ____________ has begun to provide ____________ (description of materials, equipment, labor or services) ordered by ____________ for improvements to property you own. The property is located at _________________.

A lien may be claimed for all materials, equipment, labor and services furnished after a date that is eight days, not including Saturdays, Sundays and other holidays, as defined in ORS 187.010, before this notice was mailed to you.

Even if you or your mortgage lender have made full payment to the contractor who ordered these materials or services, your property may still be subject to a lien unless the supplier providing this notice is paid.

THIS IS NOT A LIEN. It is a notice sent to you for your protection in compliance with the construction lien laws of the State of Oregon.

This notice has been sent to you by:

NAME: ____________________________

ADDRESS: _________________________

TELEPHONE: ______________________

IF YOU HAVE ANY QUESTIONS ABOUT THIS NOTICE, FEEL FREE TO CALL US.

IMPORTANT INFORMATION ON REVERSE SIDE

IMPORTANT INFORMATIONFOR YOUR PROTECTION

Under Oregon’s laws, those who work on your property or provide labor, equipment, services or materials and are not paid have a right to enforce their claim for payment against your property. This claim is known as a construction lien. If your contractor fails to pay subcontractors, material suppliers, rental equipment suppliers, service providers or laborers or neglects to make other legally required payments, the people who are owed money can look to your property for payment, even if you have paid your contractor in full. The law states that all people hired by a contractor to provide you with materials, equipment, labor or services must give you a notice of right to a lien to let you know what they have provided.

WAYS TO PROTECT YOURSELF ARE:

– RECOGNIZE that this notice of right to a lien may result in a lien against your property unless all those supplying a notice of right to a lien have been paid.

– LEARN more about the lien laws and the meaning of this notice by contacting the Construction Contractors Board, an attorney or the firm sending this notice.

– ASK for a statement of the labor, equipment, services or materials provided to your property from each party that sends you a notice of right to a lien.

– WHEN PAYING your contractor for materials, equipment, labor or services, you may make checks payable jointly to the contractor and the firm furnishing materials, equipment, labor or services for which you have received a notice of right to a lien.

– OR use one of the methods suggested by the “Information Notice to Owners.” If you have not received such a notice, contact the Construction Contractors Board.

– GET EVIDENCE that all firms from whom you have received a notice of right to a lien have been paid or have waived the right to claim a lien against your property.

– CONSULT an attorney, a professional escrow company or your mortgage lender.

87.025 Priority of Perfected Liens; Right to Sell Improvements Separately from Land; Notice to Mortgagee; List of Materials or Supplies

(1) A lien created under ORS 87.010 (2) or (6) and perfected under ORS 87.035 upon any lot or parcel of land shall be preferred to any lien, mortgage or other encumbrance which attached to the land after or was unrecorded at the time of commencement of the improvement

(2) Except as provided in subsections (3) and (6) of this section, a lien created under ORS 87.010 (1), (4) or (5) and perfected under ORS 87.035 upon any improvement shall be preferred to all prior liens, mortgages or other encumbrances upon the land upon which the improvement was constructed. To enforce such lien the improvement may be sold separately from the land; and the purchaser may remove the improvement within a reasonable time thereafter, not to exceed 30 days, upon the payment to the owner of the land of a reasonable rent for its use from the date of its purchase to the time of removal. If such removal is prevented by legal proceedings, the 30 days shall not begin to run until the final determination of such proceedings in the court of first resort or the appellate court if appeal is taken.

(3) No lien for materials or supplies shall have priority over any recorded mortgage or trust deed on either the land or improvement unless the person furnishing the material or supplies, not later than eight days, not including Saturdays, Sundays and other holidays as defined in ORS 187.010, after the date of delivery of material or supplies for which a lien may be claimed delivers to the mortgagee either a copy of the notice given to the owner under ORS 87.021 to protect the right to claim a lien on the material or supplies or a notice in any form that provides substantially the same information as the form set forth in ORS 87.023.

(4) A mortgagee who has received notice of delivery of materials or supplies in accordance with the provisions of subsection (3) of this section, may demand a list of those materials or supplies including a statement of the amount due by reason of delivery thereof. The list of materials or supplies shall be delivered to the mortgagee within 15 days, not including Saturdays, Sundays and other holidays as defined in ORS 187.010, of receipt of demand, as evidenced by a receipt or a receipt of delivery of a registered or certified letter containing the demand. Failure to furnish the list or the amount due by the person giving notice of delivery of the materials or supplies shall constitute a waiver of the preference provided in subsections (1) and (2) of this section.

(5) Upon payment and acceptance of the amount due to the supplier of materials or supplies, and upon demand of the person making payment, the supplier shall execute a waiver of all lien rights as to materials or supplies for which payment has been made.

(6) Unless the mortgage or trust deed is given to secure a loan made to finance the alteration or repair, a lien created under ORS 87.010 and perfected under ORS 87.035 for the alteration and repair of an improvement commenced and made subsequent to the date of record of a duly executed and recorded mortgage or trust deed on that improvement or on the site shall not take precedence over the mortgage or trust deed.

(7) The perfection of a lien under ORS 87.035 relates to the date of commencement of the improvement as defined in ORS 87.005. Except as provided in subsection (3) of this section, the date of creation of the lien under ORS 87.010 and the date of perfection of the lien under ORS 87.035 do not affect the priorities under this section, the equal priority of perfected lien claimants, or the distribution of proceeds to perfected lien claimants under ORS 87.060 (6).

87.027 Right of Owner to Demand List of Services, Materials, Equipment and Labor; Penalty for Failure to Provide List

An owner who receives a notice of right to a lien in accordance with the provisions of ORS 87.021 may demand, in writing, from the person providing materials, equipment, services or labor a list of materials or equipment or description of labor or services supplied or a statement of the contractual basis for supplying the materials, equipment, services or labor, including the percentage of the contract completed, and the charge therefore to the date of the demand. The supplier’s statement shall be delivered to the owner within 15 days, not including Saturdays, Sundays and other holidays as defined in ORS 187.010, of receipt of the owner’s written demand, as evidenced by a receipt or a receipt of delivery of a certified or registered letter containing the demand. Failure of the supplier to furnish the information requested constitutes a loss of attorney fees and costs otherwise allowable in a suit to foreclose a lien.

87.030 Effect of Owner Having Knowledge of Improvement; Notice of Nonresponsibility

Every improvement except an improvement made by a person other than the landowner in drilling or boring for oil or gas, constructed upon lands with the knowledge of the owner shall be deemed constructed at the instance of the owner, and the interest owned shall be subject to any lien perfected pursuant to the provisions of ORS 87.001 to 87.060 and 87.075 to 87.093, unless the owner shall, within three days after the owner obtains knowledge of the construction, give notice that the owner will not be responsible for the same by posting a notice in writing to that effect in some conspicuous place upon the land or the improvement situated thereon.

87.035 Perfecting Lien; Filing Claim of Lien; Contents of Claim

(1) Every person claiming a lien created under ORS 87.010 (1) or (2) shall perfect the lien not later than 75 days after the person has ceased to provide labor, rent equipment or furnish materials or 75 days after completion of construction, whichever is earlier. Every other person claiming a lien created under ORS 87.010 shall perfect the lien not later than 75 days after the completion of construction. All liens claimed shall be perfected as provided by subsections (2) to (4) of this section.

(2) A lien created under ORS 87.010 shall be perfected by filing a claim of lien with the recording officer of the county or counties in which the improvement, or some part thereof, is situated.

(3) A claim of lien shall contain:

(a) A true statement of demand, after deducting all just credits and offsets;

(b) The name of the owner, or reputed owner, if known;

(c) The name of the person by whom the claimant was employed or to whom the claimant furnished the materials or rented the equipment or by whom contributions are owed; and

(d) A description of the property to be charged with the lien sufficient for identification, including the address if known.

(4) The claim of lien shall be verified by the oath of the person filing or of some other person having knowledge of the facts, subject to the criminal penalties for false swearing provided under ORS 162.075.

87.039 Notice of Filing Claim of Lien; Effect of Failure to Give Notice

(1) A person filing a claim of lien pursuant to ORS 87.035 shall mail to the owner and to the mortgagee a notice in writing that the claim has been filed. A copy of the claim of lien shall be attached to the notice. The notice shall be mailed not later than 20 days after the date of filing. Notice mailed to the owner who received the notice of right to a lien as provided by ORS 87.021 shall be deemed in compliance with the requirement of this subsection, unless the person giving notice has actual knowledge of changed ownership. Notice mailed by any person to the mortgagee who received the notice required under ORS 87.025 shall be deemed in compliance with this subsection unless the person giving the notice has actual knowledge of a change of mortgagee.

(2) No costs, disbursements or attorney fees otherwise allowable as provided by ORS 87.060 shall be allowed to any party failing to comply with subsection (1) of this section.

[Note: 87.039 was enacted into law by the Legislative Assembly but was not added to or made a part of 87.005 to 87.075 by legislative action. See Preface to Oregon Revised Statutes for further explanation.]

87.045 Completion Date of Improvement; Notice of Completion, Abandonment or Nonabandonment; Contents of Notice

(1) The completion of construction of an improvement shall occur when:

(a) The improvement is substantially complete; or

(b) A completion notice is posted and recorded as provided by subsections (2) and (3) of this section; or

(c) The improvement is abandoned as provided by subsection (5) of this section.

(2) When all original contractors employed on the construction of an improvement have substantially performed their contracts, any original contractor, the owner or mortgagee, or an agent of any of them may post and record a completion notice. The completion notice shall state in substance the following:

Notice hereby is given that the building, structure or other improvement on the following described premises, (insert the legal description of the property including the street address, if known) has been completed.

All persons claiming a lien upon the same under the Construction Lien Law hereby are notified to file a claim of lien as required by ORS 87.035.

Dated ______, 20__

___________________________

Original Contractor, Owner or Mortgagee

P. O. Address: _____________________

(3) Any notice provided for in this section shall be posted on the date it bears in some conspicuous place upon the land or upon the improvement situated thereon. Within five days from the date of posting the notice, the party posting it or the agent of the party shall record with the recording officer of the county in which the property, or some part thereof, is situated, a copy of the notice, together with an affidavit indorsed thereon or attached thereto, made by the person posting the notice, stating the date, place and manner of posting the notice. The recording officer shall indorse upon the notice the date of the filing thereof and record and index the notice in the Construction Lien Book as required by ORS 87.050.

(4) Anyone claiming a lien created under ORS 87.010 on the premises described in a completion or abandonment notice for labor or services performed and materials or equipment used prior to the date of the notice shall perfect the lien pursuant to ORS 87.035.

(5) Except as provided in subsection (6) of this section, an improvement is abandoned:

(a) On the 75th day after work on the construction of the improvement ceases; or

(b) When the owner or mortgagee of the improvement or an agent of either posts and records an abandonment notice in writing signed by either the owner or the mortgagee.

(6) When work on the construction of an improvement ceases, if the owner or mortgagee of the improvement intends to resume construction and does not want abandonment to occur, the owner or mortgagee or an agent of either shall post and record a nonabandonment notice in writing signed by either the owner or mortgagee. The notice of nonabandonment shall be posted and recorded not later than the 74th day after work on the construction ceases. The notice of nonabandonment may be renewed at intervals of 150 days by rerecording the notice.

(7) The notices of abandonment or nonabandonment described in subsections (5) and (6) of this section shall state in substance:

(a) That the improvement is either abandoned or not abandoned.

(b) The legal description of the property, including the street address if known, on which the improvement is located.

(c) In the case of an abandonment notice, that all persons claiming a lien on the improvement should file a claim of lien pursuant to ORS 87.035.

(d) In the case of a nonabandonment notice, the reasons for the delay in construction.

(e) The date of the notice.

(f) The address of the person who signs the notice.

87.050 Recording

The recording officer of each county shall record all notices and claims of lien required to be filed by the provisions of ORS 87.001 to 87.060 and 87.075 to 87.093 in a book kept for that purpose, and titled “Construction Lien Book.” The notices and claims recorded in the Construction Lien Book shall be indexed as deeds and other conveyances are required by law to be indexed and shall constitute a public record of the county.

87.055 Duration of Lien; When Suit to Enforce Lien Commences

No lien created under ORS 87.010 shall bind any improvement for a longer period than 120 days after the claim of lien is filed unless suit is brought in a proper court within that time to enforce the lien, or if extended payment is provided and the terms thereof are stated in the claim of lien, then 120 days after the expiration of such extended payment, but no lien shall be continued in force for a longer time than two years from the time the claim of lien is filed under ORS 87.035 by any agreement to extend payment. For purposes of this section:

(1) Subject to subsection (2) of this section, a suit to enforce the lien shall be deemed commenced as provided in ORS 12.020.

(2) With regard to other parties who are construction lien claimants under ORS 87.035, a suit to enforce the lien shall be deemed to commence when the complaint is filed, whether or not summons or service with regard to such parties is completed within the time required by ORS 12.020.

87.057 Notice of Intent to Foreclose; List of Materials Furnished and Statement of Prices; Effect of Failure to Give Notice

(1) A person intending to foreclose a lien shall deliver to the owner of the property upon which the lien is claimed and to the mortgagee a notice in writing not later than 10 days prior to commencement of the suit stating that such person, or others, intends to commence suit to foreclose the lien. Notice delivered to the mortgagee who received the notice required by ORS 87.025 shall be deemed in compliance with this subsection, unless the person giving notice has actual knowledge of a change of mortgagee.

(2) Where a notice of intent to foreclose a lien has been given as provided by subsection (1) of this section, the sender of the notice upon demand of the owner shall furnish to the owner within five days after the demand a list of the materials and supplies with the charge therefore, or a statement of a contractual basis for the owner’s obligation, for which a claim will be made in the suit to foreclose.

(3) A plaintiff or cross-complainant seeking to foreclose a lien in a suit to foreclose shall plead and prove compliance with subsections (1) and (2) of this section. No costs, disbursements or attorney fees otherwise allowable as provided by ORS 87.060 shall be allowed to any party failing to comply with the provisions of this section.

[Note: 87.057 was enacted into law by the Legislative Assembly but was not added to or made a part of 87.005 to 87.075 by legislative action. See Preface to Oregon Revised Statutes for further explanation.]

87.058 Stay of Foreclosure Proceedings; Requirements; Procedure; Duration of Stay

(1) As used in this section:

(a) “Contractor” has the meaning given that term in ORS 701.005.

(b) “Board” means the Construction Contractors Board established in ORS 701.205.

(c) “Structure” means a residence, duplex or multiunit residential building.

(2) When a suit to enforce a lien perfected under ORS 87.035 is filed and the owner of the structure subject to that lien files a claim with the board under ORS 701.145 against a contractor who performed work that is subject to ORS chapter 701 on the structure, the owner may obtain a stay of proceedings on the suit to enforce the lien if:

(a) The owner already has paid a contractor for that contractor’s work that is subject to this chapter on the structure;

(b) The person suing to enforce the lien perfected under ORS 87.035:

(A) Performed work that is subject to ORS chapter 701 on the structure for the contractor who has been paid by the owner;

(B) Furnished labor, services or materials or rented or supplied equipment used on the structure to the contractor who has been paid by the owner; or

(C) Otherwise acquired the lien as a result of a contribution toward completion of the structure for which the contractor has been paid by the owner; and

(c) The continued existence of the lien on which the suit is pending is attributable to the failure of the contractor who has been paid by the owner to pay the person suing for that person’s contribution toward completion of the structure.

(3) The owner may petition for the stay of proceedings described in subsection (2) of this section by filing the following papers in the circuit court in which the suit on the lien is pending:

(a) A certified copy of the claim filed with the board under ORS 701.145; and

(b) An affidavit signed by the owner that contains:

(A) A description of the structure;

(B) The street address of the structure;

(C) A statement that the structure is the structure upon which the suit to enforce the lien is pending; and

(D) A statement that the petitioner is the owner of the structure.

(4) Upon receipt of a complete petition described in subsection (3) of this section, the circuit court shall stay proceedings on the suit to enforce the lien.

(5) After the board has adjudicated or otherwise completely processed the claim against the contractor’s bond or deposit, the circuit court shall dissolve the stay ordered under subsection (4) of this section.

87.060 Foreclosure; Right to Jury Trial; Distribution of Proceeds of Foreclosure Sale

(1) A suit to enforce a lien perfected under ORS 87.035 shall be brought in circuit court, and the pleadings, process, practice and other proceedings shall be the same as in other cases.

(2) In a suit to enforce a lien perfected under ORS 87.035, evidence of the actual costs of the labor, equipment, services and material provided by the lien claimant establishes a rebuttable presumption that those costs are the reasonable value of that labor, equipment, services and material.

(3) In a suit to enforce a lien perfected under ORS 87.035, the court shall allow or disallow the lien. If the lien is allowed, the court shall proceed with the foreclosure of the lien and resolve all other pleaded issues. If the lien is disallowed, and a party has made a demand for a jury trial as provided for in subsection (4) of this section, the court shall impanel a jury to decide any issues triable of right by a jury. All other issues in the suit shall be tried by the court.

(4) A party may demand a trial by jury of any issue triable of right by a jury after the lien is disallowed, if that party serves a demand therefore in writing upon the other parties at any time prior to commencement of the trial to foreclose the lien. The demand shall be filed with the court. The failure of a party to serve a demand as required by this subsection shall constitute a waiver by the party of trial by jury. A demand for trial by jury made as provided in this subsection may not be withdrawn without the consent of the parties.

(5) When notice of intent to foreclose the lien has been given, pleaded and proven as provided for in ORS 87.057, the court, upon entering judgment for the lien claimant, shall allow as part of the costs all moneys paid for the filing or recording of the lien and all moneys paid for title reports required for preparing and foreclosing the lien. In a suit to enforce a lien perfected under ORS 87.035 the court shall allow a reasonable amount as attorney fees at trial and on appeal to the party who prevails on the issues of the validity and foreclosure of the lien.

(6) In case the proceeds of any sale under ORS 87.001 to 87.060 and 87.075 to 87.093 are insufficient to pay all lienholders claiming under such statutes, the liens of all persons shall be paid pro rata. Each claimant is entitled to execution for any balance due the claimant after the distribution of the proceeds, and that execution shall be issued by the clerk of the court, upon demand, after the return of the sheriff or other officer making the sale showing the balance due.

(7) All suits to enforce any lien perfected under ORS 87.035 shall have preference on the calendar of the court over every civil suit, except suits to which the state is a party, and shall be tried by the court without unnecessary delay. In such a suit, all persons personally liable, and all lienholders whose claims have been filed for record pursuant to ORS 87.035, shall, and all other persons interested in the matter in controversy, or in the property sought to be charged with the lien, may be made parties; but persons not made parties are not bound by the proceedings. The proceedings upon the foreclosure of the liens perfected under ORS 87.035 shall, as nearly as possible, conform to the proceedings of a foreclosure of a mortgage lien upon real property.

87.070 Amount of Recovery by Contractor; Respective Rights of Contractor and Owner

Any contractor may recover, upon a lien perfected by the contractor, only the amount due to the contractor according to the terms of the contract, after deducting all claims of other parties for work done and materials furnished for which a lien is perfected under ORS 87.035. Where a claim of lien is filed pursuant to ORS 87.035 for work done or material or equipment furnished to any contractor, the contractor shall defend any action brought thereupon at the expense of the contractor, and during the pendency of such action the owner may withhold from the contractor the amount of money for which such claim of lien is filed. In case of judgment against the owner or the property of the owner upon the lien, the owner may deduct from any amount due or to become due by the owner to the contractor the amount of such judgment and costs; and if the amount of the judgment and costs exceeds the amount due by the owner to the contractor, or if the owner has settled with the contractors in full, the owner may recover back from the contractor any amount so paid in excess of the contract price, and for which the contractor was originally the party liable.

87.075 Exemption of Building Materials from Attachment by Third Persons

When a person furnishes or procures materials for use in the construction of an improvement, those materials are not subject to attachment, execution or other legal process to enforce any debt due by the purchaser of the materials, except a debt due for the purchase money thereof, so long as in good faith the materials are about to be applied to the construction of the improvement.

87.076 Bond or Deposit of Money; Amount; Demand for Release of Lien; Effect

(1) The owner of an improvement or land against which a lien perfected under ORS 87.035 is claimed, or any other interested person, may file with the recording officer of the county in whose office the claim of lien is filed a bond executed by a corporation authorized to issue surety bonds in the State of Oregon to the effect that the owner of the improvement or land against which the lien is claimed shall pay the amount of the claim and all costs and attorney fees which are awarded against the improvement or land on account of the lien. The bond shall be in an amount not less than 150 percent of the amount claimed under the lien, or in the amount of $1,000, whichever is greater.

(2)(a) In lieu of the surety bond provided for in subsection (1) of this section, the owner of an improvement or land against which a lien perfected under ORS 87.035 is claimed, or any other interested person, may deposit with the treasurer of the county in which the claim of lien is filed a sum of money or its equivalent equal in value to 150 percent of the amount claimed under the lien, or in the amount of $1,000, whichever is greater.

(b) The court in which any proceeding to foreclose the lien may be brought may, upon notice and upon motion by a person who makes a deposit under paragraph (a) of this subsection, order the money invested in such manner as the court may direct. A person who makes a deposit under paragraph (a) of this subsection shall be entitled to any income from the investments and the treasurer of the county shall pay the income when received to the depositor without order.

(3) A bond or money may be filed or deposited under subsection (1) or (2) of this section at any time after the filing of the claim of lien under ORS 87.035.

(4)(a) Any person entitled to post a bond under subsection (1) of this section or a cash deposit under subsection (2) of this section may deliver pursuant to ORS 87.018 a written demand that a lien perfected under ORS 87.035 be released and a notice that if it is not released the party making the demand may be entitled to recover the actual costs incurred by the party making the demand in complying with this section, ORS 87.078 and 87.081 or the sum of $500, whichever is greater. If the lien is not released within 10 days after delivery of the demand and notice and the lien claimant or an assignor of the lien claimant does not bring a suit to foreclose the lien within the time provided in ORS 87.055, and if the person making the demand has complied with this section, ORS 87.078 and 87.081, then the person failing to release and foreclose the lien shall be liable to the person making the demand for the actual costs incurred by the person making the demand in complying with this section, ORS 87.078 and 87.081 or the sum of $500, whichever is greater, in addition to any other remedy provided by law or equity.

(b) In any action to recover damages under this subsection in which the plaintiff prevails, there shall be allowed to the plaintiff, at trial and on appeal, a reasonable amount for attorney fees to be fixed by the court for prosecution of the action, if the court finds that a written demand for payment of the claim was made on the defendant not less than 20 days before commencement of the action. However, attorney fees shall not be allowed to the plaintiff, but shall be allowed to the defendant, if the court finds that the defendant tendered to the plaintiff prior to commencement of the action an amount not less than the damages awarded to the plaintiff.

(c) If a lien claimant or an assignor of the lien claimant is served with a demand under paragraph (a) of this subsection and is a prevailing party in the suit to foreclose the lien, then in addition to such other costs and attorney fees to which the lien claimant or the assignor of the lien claimant is entitled, the court shall allow the actual costs incurred in addressing the demand or the sum of $500, whichever is greater.

87.078 Notice of Filing Bond or Depositing Money; Contents of Notice; Effect of Failure to Give Notice

(1) A person who files a bond or deposits money under ORS 87.076 shall cause to be served upon the lien claimant a notice of the filing or deposit and, if a bond, a copy thereof, not later than 20 days after the filing or deposit. The notice shall state the location and time of the filing or deposit.

(2) If a person does not notify the lien claimant as required by subsection (1) of this section, the filing of the bond or the deposit of money is of no effect and the provisions of ORS 87.083 shall not apply in a suit to foreclose the lien for which the filing or deposit is made.

87.081 Filing Affidavit With County Officer

(1) When a person files a bond with the recording officer of the county under ORS 87.076 and serves notice of the filing upon the lien claimant, the person shall file with the same recording officer an affidavit stating that such notice was served.

(2) When a person deposits money with the treasurer of a county under ORS 87.076 and serves notice of the deposit upon the lien claimant, the person shall file with the recording officer of the same county an affidavit stating that the deposit was made and notice served.

87.083 Foreclosure After Filing of Bond or Deposit of Money; Effect of Filing or Deposit; Disposition of Bond or Money

(1) Any suit to foreclose a lien pursuant to ORS 87.060 which is commenced or pending after the filing of a bond or deposit of money under ORS 87.076 shall proceed as if no filing or deposit had been made except that the lien shall attach to the bond or money upon the filing or deposit and the service of notice thereof upon the lien claimant. The property described in the claim of lien shall thereafter be entirely free of the lien and shall in no way be involved in subsequent proceedings.

(2) When a bond is filed or money is deposited, if, in a suit to enforce the lien for which the filing or deposit is made, the court shall allow the lien, the lien shall be satisfied out of the bond or money. The court shall include as part of its judgment an order for the return to the person who deposited the money of any amount remaining after the lien is satisfied.

(3) When a bond is filed or money is deposited, if, in a suit to enforce the lien for which the filing or deposit is made, the court shall disallow the lien, the court shall include as part of its judgment an order for the return of the bond or money to the person who filed the bond or money.

87.086 Determination of Adequacy of Bond

If a lien claimant considers the bond filed with a recording officer of a county inadequate to protect the claim of the lien claimant for some reason other than the amount of the bond, the lien claimant shall, within 10 days of receipt of the notice of filing, petition the court in which the suit to foreclose the lien may be brought for a determination of the adequacy of the bond. The lien claimant shall state in detail the reasons for the inadequacy. Not later than two days after the filing of the petition with the court, the lien claimant shall send a notice of the filing and a copy of the petition by registered or certified mail to the person who filed the bond. After a hearing, if the court determines that the bond is inadequate for one or more of the reasons stated by the lien claimant, the court shall order such action as shall make the bond adequate to protect the claim of lien.

87.088 Return of Bond or Money

The recording officer or treasurer of a county in whose office a bond or money is filed or deposited under ORS 87.076 shall return it to the person who made the filing or deposit when:

(1) A suit to foreclose the lien is not commenced within the time specified by ORS 87.055; or

(2) The person who filed the bond or deposited the money presents a certified copy of a court’s order for the return of the bond or all or some of the money to that person; or

(3) The person who filed the bond or deposited the money presents a written release of lien signed by the lien claimant.

87.093 Information Notice to Owner; Adoption by Construction Contractors Board; Contents; When Notice Must Be Given; Penalty for Failure to Provide

(1) The Construction Contractors Board shall adopt by rule a form entitled “Information Notice to Owner” which shall describe, in nontechnical language and in a clear and coherent manner using words in their common and everyday meanings, the pertinent provisions of the Construction Lien Law of this state and the rights and responsibilities of an owner of property and an original contractor under that law. The rights and responsibilities described in the form shall include, but not be limited to:

(a) Methods by which an owner may avoid multiple payment for the same materials and labor;

(b) The right to file a claim against a registered contractor with the Construction Contractors Board and, when appropriate, to be reimbursed from the contractor’s bond filed under ORS chapter 701; and

(c) The right to receive, upon written request therefore, a statement of the reasonable value of materials, equipment, services or labor provided from the persons providing the materials, equipment, services or labor at the request of an original contractor and who have also provided notices of right to a lien.

(2)(a) Each original contractor shall provide a copy of the “ Information Notice to Owner” adopted by the Construction Contractors Board under this section to:

(A) The first purchaser of residential property constructed by the contractor and sold before or within the 75-day period immediately following the completion of construction; and

(B) The owner or an agent of the owner, other than an original contractor, at the time of signing a written residential construction or improvement contract with the owner.

(b) When the residential construction or improvement contract is an oral contract, the original contractor shall mail or otherwise deliver the “Information Notice to Owner” not later than five days after the contract is made.

(3) This section applies only to a residential construction or improvement contract for which the aggregate contract price exceeds $1,000. If the price of a home improvement contract was initially less than $1,000, but during the course of the performance of the contract exceeds that amount, the original contractor shall mail or otherwise deliver the “Information Notice to Owner” not later than five days after the contractor knows or should reasonably know that the contract price will exceed $1,000.

(4) An “Information Notice to Owner” need not be sent when the owner is a contractor registered with the Construction Contractors Board under ORS chapter 701.

(5) Notwithstanding ORS 87.010, if an original contractor does not provide an owner or agent with an “Information Notice to Owner” as required under subsections (2) and (3) of this section, the original contractor may not claim any lien created under ORS 87.010 upon any improvement, lot or parcel of land of the owner for labor, services or materials supplied under the residential construction or improvement contract for which the “Information Notice to Owner” was not provided.

(6) If an original contractor does not provide an owner or agent with an “Information Notice to Owner” as required under subsection (2) of this section, the Construction Contractors Board may suspend the certificate of registration of the original contractor for any period of time that the board considers appropriate or impose a civil penalty of not more than $5,000 upon the original contractor as provided in ORS 701.992.

(7) As used in this section:

(a) “Residential construction or improvement” means the original construction of residential property and constructing, repairing, remodeling or altering residential property and includes, but is not limited to, the construction, repair, replacement or improvement of driveways, swimming pools, terraces, patios, fences, porches, garages, basements and other structures or land adjacent to a residential dwelling.

(b) “Residential construction or improvement contract “ means an agreement, oral or written, between an original contractor and an owner for the performance of a home improvement and includes all labor, services and materials furnished and performed thereunder.

LIENS GENERALLY

87.142 Definitions for ORS 87.142 to 87.490, 87.705, 87.710 and 87.910

As used in ORS 87.142 to 87.490, 87.705, 87.710 and 87.910, unless the context otherwise requires:

(1) “Animal” means any mammal, bird, fish, reptile, amphibian or insect.

(2) “Chattel” includes movable objects that are capable of ownership, but does not include personal rights not reduced to possession but recoverable by an action at law or suit in equity, money, evidence of debt and negotiable instruments.

(3) “Electric cooperative” means a cooperative corporation organized under ORS chapter 62 the principal business of which is the construction, maintenance and operation of an electric transmission and distribution system for the benefit of the members of that cooperative corporation and which has no other principal business or purpose.

(4) “Electric utility” means a corporation engaged in distributing electricity, directly or indirectly, to or for the public and regulated by the Public Utility Commission under ORS chapter 757.

(5) “Excavation” means a shaft, tunnel, incline, adit, drift or other excavation designed for the use, working or draining of a mine.

(6) “Fair market value” means, with respect to a chattel sold at a foreclosure sale under ORS 9.370, 87.142 to 87.490, 87.705, 87.710, 87.910 and 90.120, the price of chattels of the same kind and condition prevailing in the county of sale at the time of sale.

(7) “Fungible chattels” means chattels of which any unit is the equivalent of any other unit.

(8) “Improvement” means a road, tramway, trail, flume, ditch, pipeline, building, structure, superstructure or boardinghouse used for or in connection with the working or development of a mine.

(9) “Irrigation” includes the use of canals, ditches, pipes, pumps, spraying apparatus and other mechanical devices to water land artificially.

(10) “Mine” means a mine, lode, mining claim or deposit that contains or may contain coal, metal or mineral of any kind.

(11) “Mortgagee” means a person who has a valid subsisting mortgage of record or trust deed of record securing a loan upon any real property to be charged with a lien under ORS 87.352 to 87.362.

(12) “Nursery stock” means fruit trees, fruit-tree stock, nut trees, grapevines, fruit bushes, rose bushes, rose stock, forest and ornamental trees, and shrubs both deciduous and evergreen, florists’ stock and cuttings, scions and seedlings of fruit or ornamental trees and shrubs, and all other fruit-bearing plants and parts thereof and plant products for propagation or planting.

(13) “Owner” includes:

(a) A person who has title to a chattel or real property;

(b) A person who is in possession of a chattel or real property under an agreement for the purchase thereof, whether the title thereto is in the person or the vendor of the person; or

(c) A person who is in lawful possession of a chattel or real property.

(14) “Person” includes individuals, corporations, associations, firms, partnerships and joint stock companies.

(15) “Security interest” means an interest in a chattel reserved or created by an agreement that secures payment or performance of an obligation as more particularly defined by ORS 71.2010 (37).

(16) “Timbers” means sawlogs, spars, piles, and other wood growth that has been cut or separated from land.

(17) “Wood products” includes lumber, slabwood, plywood and other wood products produced from timbers. The term does not include paper or products made from paper.

87.146 Priorities of Liens

(1) Except as provided in subsection (2) of this section:

(a) Liens created by ORS 87.152 to 87.162 have priority over all other liens, security interests and encumbrances on the chattel subject to the lien, except that taxes and duly perfected security interests existing before chattels sought to be subjected to a lien created by ORS 87.162 are brought upon the leased premises have priority over that lien.

(b) Liens created by ORS 87.216 to 87.232 have equal priority. When a decree is given foreclosing two or more liens created by ORS 87.216 to 87.232 upon the same chattel, the debts secured by those liens shall be satisfied pro rata out of the proceeds of the sale of the property.

(c) With regard to the same chattel, a lien created by ORS 87.216 to 87.232 has priority over a nonpossessory chattel lien created by any other law.

(d) With regard to the same chattel, a lien created by ORS 87.216 is junior and subordinate to a duly perfected security interest in existence when the notice of claim of such lien is filed under ORS 87.242.

(e) With regard to the same chattel, a lien created by ORS 87.222 to 87.232 has priority over a security interest created under ORS chapter 79.

(2)(a) A personal property tax lien, a chattel lien claimed by the State of Oregon, its agencies or any political subdivision thereof, and a chattel lien claimed by a state officer or employee during the course of official duty pursuant to law have priority over a lien created by ORS 87.152 to 87.162 and 87.216 to 87.232.

(b) A duly perfected security interest of a lessor in any portion of crops or animals to pay or secure payment of rental of the premises upon which those crops or animals are grown, not to exceed 50 percent of those crops or animals, shall not be subject to the lien created by ORS 87.226.

MISCELLANEOUS PROVISIONS

87.910 Cost of Preparing Lien Notice

A person who files a notice or claim of lien under this chapter may add to the amount of the claim, as contained in the notice, the amount of fees actually paid for the recording or filing of the lien notice, and such amount thereupon shall become part of the lien against the property described in the notice.

87.920 Recording of Document not to Create Lien, Affect Title or Constitute Notice Except as Authorized by Law

Except where filing of the document is specifically required or authorized by statute, no document filed for recording or otherwise with any public officer in this state before or after October 15, 1983, shall create a lien or encumbrance upon or affect the title to the real or personal property of any person or constitute actual or constructive notice to any person of the information contained therein.

[Note: 87.920 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 87 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.]

CHAPTER 88 FORECLOSURE OF LIENS GENERALLY

88.010 Foreclosure of Liens by Suit; Decree for Amount of Debt

Except as otherwise provided by law, a lien upon real or personal property, other than that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit. Except as provided in ORS 88.070, in addition to the decree of foreclosure and sale, if a promissory note or other personal obligation for the payment of the debt has been given by the lien debtor or any other person as principal or otherwise, the court also shall decree a recovery of the amount of the debt against such person or persons, as the case may be, as in the case of an ordinary decree for the recovery of money. The provisions of this chapter as to liens upon personal property are not intended to exclude a person having such lien from any other remedy or right in regard to such property.

88.020 Joinder of Foreclosure Suit Involving Realty with Suit to Quiet Title

Any cause of suit involving real property provided for in ORS 88.010 may be joined with any cause of suit provided for in ORS 105.605 in the same complaint or cross-complaint, if both causes of suit involve the same real property or some part thereof and are separately stated. Any person may be joined as a party who is a proper party to either cause of suit. The court, in event of such joinder, may render a decree which will, among other things, determine the paramount title to the real property involved or any part thereof.

88.030 Other Lienholders and Debtors as Defendants; Effect of Failure to Redeem

Any person having a lien subsequent to the plaintiff upon the same property or any part thereof, or who has given a promissory note or other personal obligation for the payment of the debt, or any part thereof, secured by the mortgage or other lien which is the subject of the suit, shall be made a defendant in the suit, and any person having a prior lien may be made defendant at the option of the plaintiff, or by the order of the court when deemed necessary. The failure of any junior lien or interest holder who is omitted as a party defendant in the suit to redeem within five years of the date of a sheriff’s sale under ORS 88.080 shall bar such junior lien or interest holder from any other action or proceeding against the property by the person on account of such person’s lien or interest.

88.040 Foreclosure Suit During and After Action for Debt

During the pendency of an action for the recovery of a debt secured by any lien mentioned in ORS 88.010, a suit cannot be maintained for the foreclosure of the lien, nor thereafter, unless judgment is given in such action that the plaintiff recover the debt or some part thereof, and an execution thereon against the property of the defendant is returned unsatisfied in whole or in part.

88.050 Decree Where More Than One Lien on Same Property

When it is adjudged that any of the defendants have a lien upon the property, the court shall make a like decree in relation thereto, and the debt secured thereby, as if such defendant were a plaintiff in the suit. When a decree is given foreclosing two or more liens upon the same property or any portion thereof in favor of different persons not united in interest, the decree shall specify the order, according to their priority, in which the debts secured by such liens shall be satisfied out of the proceeds of the sale of the property.

88.060 Enforcement of Decree

The decree may be enforced by execution as an ordinary decree for the recovery of money, except as in this section otherwise provided:

(1) When a decree of foreclosure and sale is given, an execution may issue thereon against the property adjudged to be sold. If the decree is in favor of the plaintiff only, the execution may issue as in ordinary cases, but if it is in favor of different persons, not united in interest, it shall issue upon the joint request of such persons or upon the order of the court or judge thereof on the motion of any of them.

(2) When the decree is also against the defendants or any one of them in person, and the proceeds of the sale of the property upon which the lien is foreclosed are not sufficient to satisfy the decree as to the sum remaining unsatisfied, the decree may be enforced by execution as in ordinary cases. When in such case the decree is in favor of different persons not united in interest, it shall be deemed a separate decree as to such persons, and may be enforced accordingly.

88.070 Decree Foreclosing Purchase Money Mortgage on Real Property

When a decree is given for the foreclosure of any mortgage given to secure payment of the balance of the purchase price of real property, the decree shall provide for the sale of the real property covered by such mortgage for the satisfaction of the decree given therein, but the mortgagee shall not be entitled to a deficiency judgment on account of the mortgage or note or obligation secured by the same.

88.075 When Mortgage is Considered a Purchase Money Mortgage

A mortgage entered into after September 13, 1975, is a purchase money mortgage if the mortgage is given to a vendor to secure the unpaid balance of the purchase price of real property or if the mortgage is given to a lender or any other person to secure up to $50,000 of the unpaid balance of the purchase price of real property used by the purchaser as the primary or secondary single family residence of the purchaser.

88.080 Sale and Redemption; Effect of Sheriff’s Deed

A decree of foreclosure shall order the mortgaged property sold. Property sold on execution issued upon a decree may be redeemed in like manner and with like effect as property sold on an execution pursuant to ORS 23.410 to 23.600, and not otherwise. A sheriff’s deed for property sold on execution issued upon a decree shall have the same force and effect as a sheriff’s deed issued for property sold on an execution pursuant to ORS 23.410 to 23.600.

88.090 Decree When Debt Payable in Installments

When a suit is commenced to foreclose a lien securing a debt payable in installments, either of interest or principal, and any of such installments is not then due, the court shall decree a foreclosure of the lien, and may also decree a sale of the property for the satisfaction of the whole debt, or so much thereof as may be necessary to satisfy the installment then due, with costs of suit. In the latter case, the decree of foreclosure as to the remainder of the property may be enforced by an order of sale, in whole or in part, whenever default occurs in the payment of the installments not then due.

88.100 Payment of Amount Due Before Foreclosure Sale; Decree for Payment of Installment Not Due

If, before a decree is given, the amount then due with the costs of suit is brought into court and paid to the clerk, the suit shall be dismissed. If the same is done after decree and before sale, the effect of the decree as to the amount then due and paid shall be terminated, and the execution, if any has issued, shall be recalled by the clerk. When an installment not due is adjudged to be paid, the court shall determine and specify in the decree what sum shall be received in satisfaction thereof, which sum may be equal to such installment, or otherwise, according to the present value thereof.

88.110 Duration of Real Property Mortgage Lien; When Suit for Foreclosure Barred

Except as provided in ORS 88.120, no mortgage upon real property shall be a lien upon such property after the expiration of 10 years from the date of maturity of the mortgage debt or from the date to which the payment thereof has been extended by agreement of record; and after such 10 years the mortgage shall be conclusively presumed paid and discharged, and no suit shall be maintainable for its foreclosure. If the date of maturity of the debt is not disclosed by the mortgage itself, then the date of the execution of the mortgage shall be deemed the date of maturity of such debt.

88.120 When Foreclosure not Barred by ORS 88.110

Foreclosure of a mortgage on real property is not barred by ORS 88.110 when all the following facts exist at the time the foreclosure suit is commenced:

(1) Any portion of the mortgage debt, or any interest thereon, has been voluntarily paid within the 10 years immediately preceding commencement of the suit.

(2) The original mortgagor still owns the mortgaged property.

(3) No lien or right of a third person has attached to the property after the expiration of the 10-year period referred to in ORS 88.110.

88.710 Definitions for ORS 88.710 to 88.740

As used in ORS 88.710 to 88.740:

(1) “Director” means the Director of Veterans’ Affairs.

(2) “Lien” means any charge upon property for the payment or discharge of a debt, tax or duty due the State of Oregon or any agency of the state, including judgment liens, recorded or docketed warrants or any notice or claim of amount due given by the state, or an agency thereof, pursuant to law and carried forward on the County Clerk Lien Record or circuit court judgment docket of the county wherein property is located to which a lien of the state attaches.

88.720 Acquisition, Administration and Disposal by State of Property Subject to Lien Held by State

Whenever in the discretion of the director such a procedure would appear beneficial to the state, and on advice of the state agency charged with collection of a tax, duty, debt or any sum owing the state for which a lien securing such debt, tax or duty is being foreclosed by the state agency or by third parties, the director may bid in or redeem real or personal property ordered sold under foreclosure where such property is subject to any lien held by the state at a price limited to the sum of the amount of the state lien and all other prior liens plus costs but in no event to exceed the appraised value; acquire title to real property for and in behalf of the state as a result of such foreclosure; accept deeds from debtors, taxpayers or other persons owing a debt, tax or duty to the state in lieu of foreclosure; make repairs, improvements or alterations; insure against loss or damage; pay taxes, liens and charges of every kind superior to the lien of the state; and sell, transfer, lease or assign such property for and in behalf of the state, or otherwise administer such property in such manner as the director deems for the best interest of the state in the same manner the director manages and conveys property pursuant to ORS 407.135; the director shall undertake to sell property after acquiring marketable title thereto, and while holding such property shall not engage in any enterprise competitive with private enterprise other than the renting or leasing of such property or interests therein. The control of such property while title remains vested in the state shall be exercised by the director.

88.740 Investment of Oregon War Veterans’ Bond Sinking Account Surplus Moneys

(1) The director is authorized, in whatever manner the director considers advisable and to the extent necessary to carry out the provisions of ORS 88.710 to 88.740, to use the surplus moneys in the Oregon War Veterans’ Bond Sinking Account, other than the moneys therein which are derived from tax levies and sales of refunding bonds, that are earnings in excess of the amount required to amortize the bonded indebtedness incurred under the authority of section 1, Article XI-A of the Oregon Constitution, and ORS 407.115, 407.125, 407.165, 407.205, 407.275, 407.415, 407.495, 407.515 and 407.555 to 407.575.

(2) The property acquired under ORS 88.710 to 88.740 shall represent an investment of the Oregon War Veterans’ Bond Sinking Account and all moneys received by the director from the sale, lease or other disposition of any property shall be deposited in the Oregon War Veterans’ Bond Sinking Account.

(3) The director may pay to the State Treasurer, to be deposited in the General Fund available for general governmental expenses:

(a) An amount equal to the balance owing on any existing real estate contract arising out of the sale of property by the director which was an investment of the General Fund pursuant to ORS 88.710 to 88.740, and upon such payment the interest represented by the real estate contract shall represent an investment of the Oregon War Veterans’ Bond Sinking Account.

(b) An amount equal to the General Fund moneys expended for the acquisition of presently unsold properties pursuant to ORS 88.710 to 88.740, and upon such payment the properties shall represent an investment of the Oregon War Veterans’ Bond Sinking Account.