Friday, September 30, 2022


            In real estate law, FED does not relate to food. Or eating. No, FED is an abbreviation for Forcible Entry and Detainer. And, Forcible Entry and Detainer means eviction.

             In October 2019 Joshua and Jamie Scott rented an apartment from Xin Hickey, requiring a $1500 security deposit and rental of $850 per month. When Josh and Jamie moved in, they paid $525 and shortly after a third-party paid $1500 on their behalf.

             No further payments were made.

             In December 2019 Hickey issued a termination notice due to nonpayment of rent. The notice stated that Josh and Jamie owed $1700 in unpaid rent - $850 for October and $850 for November. When no other monies were paid, Hickey filed an FED action.

             The FED trial was held in January 2020. J&J claimed they owed no additional rent for October and November, stating that Hickey had received $2025 total but was owed only $1700 so Hickey had been overpaid by $325. Hickey replied that the first $525 received was “understood” to cover a $100 cleaning deposit and $425 in rent, and that the $1500 secondary payment was to be applied as a security deposit. Not monthly rent. And as a consequence, J&J owed rent.

             J&J requested a Judgment to the effect that they had paid all they owe, and then some more. Hickey requested an eviction Judgment.

             The trial court concluded that J&J were required to submit the amount stated in the termination notice. Since J&J failed to do so, Hickey is entitled to an eviction Judgment.

             J&J appealed.

             The Court of Appeals determined that J&J had two choices to avoid eviction: (1) pay the amount owing and contest the difference at trial; or (2) deposit the disputed amount with the registry of the court until the matter is resolved.

             Since J&J did neither, the Court of Appeals affirmed.

             J&J further appealed.

             The Supreme Court determined that only an exact statement of the amount due is satisfactory. If the notice is inaccurate, it is invalid and an eviction Judgment cannot be granted. Because Hickey did not issue a notice that stated the correct amount owing, the Court must dismiss the request for eviction Judgment.

             Hickey could then file another FED lawsuit after issuing proper notice.

             J&J win this round; Hickey loses. See Hickey v. Scott; Supreme Court of Oregon; Case No. S068647; July 28, 2022:

             Questions / Issues:

  1. The Opinion doesn’t state it, but this must be an oral Lease. Otherwise, presumably there would be no issues regarding the exact amount owing.
  1. Even if this is a written Lease at issue, many jurisdictions allow oral amendments to written documents. Does your Lease have a provision prohibiting oral amendments and allowing only written modifications?
  1. In my State, a landlord is permitted to demand that a tenant pay the delinquent rent or vacate. Perhaps demanding that tenant pay the delinquent amount is not the best practice, if there is a chance of a computation error. Instead, maybe best practice is simply an unequivocal demand to vacate, unless the Lease requires otherwise.

                                                                                      Stuart A. Lautin, Esq.*


* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law, Texas Board of Legal Specialization

Licensed in the States of Texas and New York


Reprinted with the permission of North Texas Commercial Association of REALTORS®, Inc.


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