Phil Querin Q&A: Boyfriend on Temp Occupant Agreement - What happens after they break up

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June 4, 2013

Question: A tenant has her boyfriend living in her home under a MHCO Occupancy Agreement. We put him under the Occupancy Agreement instead of permitting to become a tenant because his background check was sketchy. They both work and they alternate paying the monthly rent. Generally they do not create problems in the community and stay mostly by themselves. However, recently the tenant and boyfriend broker up, but the tenant moved out leaving her boyfriend to continue paying the rent. How do I get the boyfriend out?

Answer: A temporary occupant is not supposed to be paying the rent. You are not allowed to screen for the occupant’s ability to pay, because they are not a tenant. Your acceptance of rent from the occupant creates an appearance that the occupant is really a tenant. Secondly, the law says that a temporary occupant may not live in the home unless there is a tenant there as well. Accordingly, if you accept rent from the temporary occupant in the absence of the tenant living there, it could create a situation where you have waived the temporary occupant status, and are now treating him as a full time tenant. Here are the rules under the temporary occupancy statute ORS 90.275: • The temporary occupant: o Is not a tenant entitled to occupy the dwelling unit to the exclusion of others; and o Does not have the rights of a tenant. • The temporary occupancy agreement may be terminated by: o The tenant without cause at any time; and o The landlord only for cause that is a material violation of the temporary occupancy agreement. • The temporary occupant does not have a right to cure a violation that causes a landlord to terminate the temporary occupancy agreement. • Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record. The landlord may not screen the proposed temporary occupant for credit history or income level. • A temporary occupancy agreement: o Must expressly include the above requirements; o May provide that the temporary occupant is required to comply with any applicable rules for the premises; and o May have a specific ending date. • The landlord, tenant and temporary occupant may extend or renew a temporary occupancy agreement or may enter into a new temporary occupancy agreement. • A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement. • The temporary occupant shall promptly vacate the dwelling unit if a landlord terminates a temporary occupancy agreement for material violation of the temporary occupancy agreement or if the temporary occupancy agreement ends by its terms. o Except in cases of discrimination (ORS 90.449) a landlord may terminate the tenancy of the tenant if the temporary occupant fails to promptly vacate or if the tenant materially violates the temporary occupancy agreement. • A temporary occupant is treated as a squatter if they continue to occupy the home after a tenancy has ended or after the tenant revokes permission for the occupancy by terminating the temporary occupancy agreement. • A landlord may not enter into a temporary occupancy agreement for the purpose of evading landlord responsibilities; • A tenant may not become a temporary occupant in the tenant’s own dwelling unit; • A tenancy may not consist solely of a temporary occupancy. Each tenancy must have at least one tenant. In your case, it would appear that you could either terminate the tenant’s tenancy since they vacated leaving the temporary occupant to occupy alone, a violation of the statute, or terminate the temporary occupant for the same reason. I would try a written notice to the temporary occupant, to see if they will voluntarily vacate. If they refuse, then you should retain counsel and proceed to evict him as a squatter. Do not, under any circumstances, accept rent from the temporary occupant.