Phil Querin Q&A - Accepting Rent When Another Name is On the Check

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November 11, 2015
Phil Querin
MHCO Legal Counsel
Querin Law

Question:  When can a manager refuse payment by check? If the name on the check does not match the resident’s name can (or should) the check be refused?  Should there be a park rule to back this up? If the manager refuses payment because of the name on the check and asks for money order or cash does that have to be in the rules? All of this stems from the concern of unauthorized residents becoming tenants simply because a manager accepts a check for space rent when they are not an approved tenant.
 

 

Answer:  One issue is accepting rent from a possessor after the legal tenant has gone. This can occur, for example, where someone is residing at the space under a Temporary Occupancy Agreement, but the approved tenant, no longer resides there. Alternatively, the person could be a lawful visitor, who has overstayed their permitted time, and the legal resident has left. ORS 90.403 deals with this:

 

 90.403 Taking possession of premises from unauthorized possessor. (1) If an unauthorized person is in possession of the premises, after at least 24 hours’ written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

      (a) The tenant has vacated the premises;

      (b) The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and

      (c) The landlord has not knowingly accepted rent from the person in possession of the premises.

      (2) Service of notice under this section does not create a right of tenancy for the person in possession of the premises. [2005 c.391 §12] (Emphasis added.)

 

In this case, it can be fatal to a landlord’s effort to remove that person if rent is accepted. If rent is in the form of a check, cash or money order, I can think of no reason to accept it. Period.  Since the person is an unlawful occupant, I’m not concerned that there is no rule on it, since the statute clearly gives you the legal entitlement to evict.

 

The other issue arises when a lawful resident resides in the space, but they have an occupant who has not been approved as a co-tenant or a temporary occupant.  If you are going to accept them as a temporary occupancy, get them on a Temporary Occupancy Agreement. You can do a criminal background check, but not a financial one, since they are there not to subsidize the tenant’s rent, as in co-tenancy.  Accordingly, do not accept rent in any form from temporary occupant, unless it is drawn on the tenant’s sole account and the check bears that out. 

 

As to unlawful occupants who are staying at the space, but have not been approved as a tenant, the issue of the form of payment misses the larger point - which is waiver. If the person is unauthorized, and you know of their occupancy, insist that they apply for tenancy, and make sure they do not stay beyond the time allowed for visitors under the park rules.  The issue of waiver is not just a question of accepting a check from the unapproved person.  Acceptance of rent from the lawful tenant when you know he or she is housing an unapproved person, can also result in waiver.

 

ORS 90.412 provides in part:

 

(2) Except as otherwise provided in this section, a landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

(a)During three or more separate rental periods, accepts rent with knowledge of the violation by the tenantor

(b)Accepts performance by a tenant that varies from the terms of the rental agreement.

(3)A landlord has not accepted rent for purposes of subsection (2) of this section if:

(a)Within 10 days after receipt of the rent payment, the landlord refunds the rent; or

(b)The rent payment is made in the form of a check that is dishonored. (Emphasis added)

 

So the take-away here is that you do not want to accept rent from anyone, even the tenant, when you know they are violating the rules, such as keeping an unapproved occupant at the space. If you accept rent from the lawful tenant under these circumstances, return it within ten days after receipt – if the check has been cashed, write a new check back to the tenant with an explanation, and demand that the unpermitted person apply for tenancy. Under the statute, waiver will not occur for the first two events of accepting the rent without returning is within ten days. The third or subsequent time can constitute a waiver. Waiver does not occur if the rent is properly returned within the ten day period, no matter the number of times it’s tendered.

 

As for taking a rent check from the unapproved person, I don’t recommend doing so unless the check is drawn on the tenant’s own account. If it’s a joint account with the unapproved person, don’t accept it. The same holds true of any other form of payment (e.g. cash or money order) unless there is clear evidence that it came from the lawful tenant. Just remember, though, that acceptance of rent from the lawful tenant – in any form – can count as a waiver under ORS 90.412 if you know they have an unlawful occupant at the space. 

 

As for a park rule, I think it’s always a good idea to have a rule about the time, place and form of payment. It’s OK to say non-residents cannot pay the space rent for residents, but even without such a rule, I believe you are within your rights to refuse payment. Rent is defined at ORS 90.100(37) as follows:

 

Rent means any payment to be made to the landlord under the rental agreement, periodic or otherwise, in exchange for the right of a tenant and any permitted pet to occupy a dwelling unit to the exclusion of others and to use the premises. (Emphasis added.)

Since the payment from the unauthorized resident is not from a “tenant”, and not pursuant to the “rental agreement”, and not “in exchange for the right to occupy” the space, it’s my opinion that, with or without a rule to this effect, you are within your rights to reject it, regardless of form.

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