Phil Querin Article - Elderly Residents Who Leave the Community

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August 9, 2017
Phil Querin
MHCO Legal Counsel
Querin Law

 

In communities with elderly tenants, landlords are frequently confronted with the question “How do I deal with their home and their care providers when they leave, and with their estates?”

 

Most of the answers can be found in the abandonment statute, ORS 90.675.  The underlying premise to remember in addressing all of these issues, is that if the resident leaves the community without properly disposing of their home, the landlord has no choice but to deal with it as an abandonment. 

 

 

Obviously, if the elderly or infirm resident, or their family, sell the home before the resident transfers to an assisted care facility, the problem goes away.  If not, i.e. the home is vacated and space rent is not paid, the landlord should try to determine the intent of the departing resident, either from the resident themselves, or their family.[1]  Are they intending to “abandon” the home?[2]  If the resident, or their family, intends to try to resell the home, and make space rental payments in the meantime, then there is probably room for an agreement.  But if - as is all too often the case - the intent is to either to simply “walk away” or not make any payments until the home is sold, then the landlord must evaluate his or her alternatives.

 

When the Resident Leaves   Under these circumstances, assuming that the resident or their family did not contact the landlord in advance, and there is no way to find out where they have gone, the only alternative is to issue a 72-hour notice for nonpayment

of space rent.   If it is not paid, the FED must be filed, and if the resident does not show up, the court will grant a judgment of restitution.  After the lapse of 7 days following issuance of the judgment of restitution, the landlord may commence an abandonment, and proceed to auction as permitted by Oregon law. 

 

It is precisely because the landlord’s alternatives are so limited, that it is important to try to determine, in advance, what is going on with the tenant.  If they are sick or infirm, this means trying to contact a close relative or friend.  Are they planning on leaving?  Are they going into an assisted care facility?  Are they working with a social worker?  If so, what agency is it?  Having the answer to these questions make it much easier on the landlord and ultimately the elderly tenant, when the time comes for the tenant to relocate because of advanced age or health. 

 

When the Resident Acquires State Assistance   Where the resident obtains state assistance, and that agency acquires lien rights in the home as a result, the landlord still has the right to enforce payment of the rent.  Similar to the situation where the resident “walks away” if rent isn’t paid, an eviction may be filed and abandonment commenced following 7 days after the court’s issuance of a judgment of restitution.  As discussed below, while the state agency has certain rights during the abandonment process, they are not any different than other lienholders.  However, if the space rent is not paid, either by the tenant or the state agency, the landlord has the right to commence the eviction process, by first giving a 72-hour notice of nonpayment.

 

Dealing with the Estate  Most estate attorneys and heirs, do not understand the statutory abandonment process.  In a nutshell, the estate has substantially the same rights to resell the home under a storage agreement as a lienholder, except that the resale period lasts for 90 days or close of probate, whichever is longer.   Unfortunately, in most cases where the resident has passed away, the attorney, if one has been retained, or the beneficiaries, if not, assume that they do not have to pay space rent until the home is sold.  This is patently incorrect.  If the estate does not return the signed storage agreement within 60 days following the issuance of the abandonment and storage agreement, the landlord may proceed to auction. 

 

In those cases in which the state agency has a lien (e.g. the Oregon Department of Revenue where the personal property taxes are paid under the senior citizens’ deferral program), they must be notified of the abandonment the same as any other lienholder.   However, in many instances, the state agency fails to file its lien with the Department of Motor Vehicles (“DMV”), which is the primary source for landlords to determine whether there are any liens filed against the home.  Unless the landlord has actual notice of the lien, the failure of the agency to record it with the DMV will likely prevent it from being notified of a pending abandonment.[3]

 

 

 

Conversely, if a landlord is notified that the state agency providing assistance to the resident intends to claim a lien, then he or she should make sure to give them notice, once the resident has left the home (with no intent to return) and the abandonment process has been started.  In this manner the state agency will have to decide – like all lienholders – whether to sign the storage agreement and commence making storage fee payments, or (b) give up the right to resell the home on site, to satisfy the lien.

 

 

 

 

 


[1] A related problem arises where the elderly tenant leaves, after transferring possession (and sometimes ownership) of the home to a younger relative – without the landlord’s consent.  Assuming that the landlord has not consented or accepted rent from the unauthorized occupant, this is a violation of ORS 90.400(3)(d) and the landlord has the right to issue a 24-hour notice to the occupant of the home, and, if necessary, terminate the tenancy.

[2] By “abandonment” I mean that the resident has, or will leave, with no intent of returning. 

[3] Although this issue has not been addressed in any Oregon appellate court case, it is hard to see how a landlord could be required to notify a state agency, if he or she did not know that the agency claimed a lien on the home.  Unless or until ORS 90.675 is amended, it would seem incumbent on any state agency claiming a lien to become familiar with the statute and record their lien with the DMV.

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