Mark Busch Q&A: “Stay and Pay” Court Agreements

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July 29, 2015
Mark Busch
Attorney
Mark Busch P.C.

 

Question:  We have a younger gentleman who has lived in the RV section of our park now for around six months.  He checked out well in our application process, but now has not paid rent for two months.  He says that he was laid off from his job, but is starting a new one and that his mother has agreed to help him catch up.  But that was several weeks ago and still nothing.  We don’t necessarily want to evict him, but this obviously can’t continue.  Any advice?

 

Answer:  You are right that it can’t continue – this is your business and you need to treat it as a business.  However, there is a chance that you can give this tenant an opportunity to redeem himself, yet still protect your interests as well.

The first step is to give the tenant a 72-hour rent nonpayment notice.  Use MHCO Form 82, fill it in following the directions on the form, and serve it on the tenant.  If the tenant pays the rent by the 72-hour notice deadline, then life goes on and the tenancy continues.  If not, you should file an eviction case at your county courthouse. 

The court clerk will have several “check the box” forms that you can use to file an eviction – but be sure to bring along several copies of the 72-hour notice that you will need to attach to the eviction complaint.  After you file the paperwork and pay the filing fee, you can then have the sheriff serve the eviction summons and complaint.  The court clerk will be able to show you to the sheriff’s office to have them serve the paperwork.

The court clerk will set a “1st court appearance hearing” when you file the eviction complaint.  Both sides need to show up at this hearing.  If the tenant doesn’t appear, then you win automatically and get a judgment entitling you to an eviction by the sheriff.   The court clerk can give you the paperwork to finish that process.

If the tenant does show up, you will get a chance to negotiate a “stay and pay” agreement that the court will sign off on as an enforceable court order.  (Most courts will have a form that you can use for this agreement.)  Under Oregon law, the payment agreement can and should include:  (1) All past-due rent; (2) late fees; (3) unpaid utilities; (4) court costs; (5) attorney fees (if any); and, (6) any other unpaid charges.  The payment agreement can extend for up to six months, with payments made at monthly intervals or any other schedule that both sides agree on.  The agreement can also include the next three regular monthly rent payments, sort of a “probationary period” to make sure the tenant gets back on track.

If the tenant complies with the payment terms, the tenancy continues and the court will automatically dismiss the eviction case after the payment agreement expires.  If the tenant misses any payment, then you will file a “declaration of noncompliance” with the court and finish the eviction process.

These “stay and pay” agreements are very useful to my landlord clients and I use them regularly.  They give you an opportunity to keep good tenants that may have temporarily fallen on hard times, but also keep open your eviction options.

As the landlord, you will also need to appear in court unless you have an attorney or other agent (such as a property  manager) appear in court at the "1st appearance hearing." This hearing is usually set 8 days after the FED is filed. The purpose of the hearing is to see whether the parties can work out a payment plan, move-out agreement, or other arrangement. If not, the case will be set for trial.

If you are unable to settle the case at the first appearance hearing, by law the trial must be scheduled within 15 days from the 1st appearance hearing. Sometimes, the parties or the court will delay the trial beyond  this time frame, but most cases move quickly. This leaves little time for preparation, meaning it is important to have your witnesses, exhibits, and trial arguments ready to go.

You do not necessarily need an attorney for court appearances, but you will increase your chance of success if you do. The eviction statutes are very technical, and  most  people aren't  familiar with courtroom procedures. You will especially be at a disadvantage if the RV tenant has an attorney. If your case gets to the point of a trial, it is usually worth it to hire an attorney.

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