Phil Querin Observation - Caregivers and Occupancy Agreements

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April 7, 2015
Phil Querin
MHCO Attorney
Querin Law

The following is a summary of my conversation with the Fair Housing Council of Oregon on the issue of whether landlords can put caregivers on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement, or not putting them on any written agreement (which leaves in doubt their legal status if the Landlord wants them removed from the Community).

 

  1. If the provider doesn’t qualify based on the background check[1] then you don’t have to accept them into the Community;
  2. If they violate rules of the community when they are already in the Community you can require they leave. (Of course if they are not on an Occupancy Agreement, this could mean removing the tenant if the caregiver refuses to leave, and the tenant doesn’t force them to do so);
  • You can pre-qualify the person as a care provider, i.e. required a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
  • If they can’t provide that proof, then you don’t have to allow them into the Community as a care provider (although I can’t imagine it would be very hard to obtain such proof);
  • You have to give the tenant a choice (assuming the person qualifies under the background check), i.e. they can be on an Occupancy Agreement or go onto a Rental Aagreement.  You can’t automatically say, “OK, you must go on an Occupancy Agreement.”
  • It is believed that if the tenant understands the risk of allowing the caregiver to be a tenant (i.e. if the caregiver is disruptive, the current tenant may have to leave also), that they will voluntarily opt to put the person on the Occupancy Agreement. (Note: This doesn’t address the problem where the person doesn’t financially qualify to be on the Rental Agreement, but I suspect FHCO would say it’s a “reasonable accommodation” by the L to waive that financial requirement.)  This approach may be slightly unrealistic in those cases in which the tenant wants the caregiver there, and defers to what the caregiver says.
 


[1] Remember, you cannot require financial capacity if they are to be an occupant, but you can if they are to be a tenant.