Phil Querin Q&A: Caregiver Violates Community Rules

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October 10, 2016
Phil Querin
MHCO Attorney
Querin Law

 

Question:  We have a 91 year old tenant who is bedridden, and his daughter who is 66 years old, is his caretaker. He is not coherent. Meanwhile, she continually lets people stay at the residence past the 14 day limit in our rules. The space is not maintained.  We sent a 30 day notice in August for unauthorized residents. Unfortunately, the caretaker continues to let in more unauthorized residents, some of whom are suspected of burglaries in the park and the residents are very concerned about their safety and are demanding we evict. The caretaker’s guests routinely break the rules. I have contacted the county ‘Adult and Senior Services”.  They have not been helpful.  The residents want something to be done.  I hate the thought of evicting a 91-year old man, just to get rid of his daughter.

 

 

Answer. I suspect you allowed the caregiver in without putting her on an Occupancy Agreement (MHCO Form No. 25 ). See, ORS 90.275.  It gives you great latitude to control an occupant’s activities, since violation can result in eviction action directly against the caregiver.

 

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).

  • If the caregiver doesn’t qualify based on the background check[1] then you don’t have to accept them into the Community;
  • If they violate rules of the community when they are already in the Community and under the agreement, you can require they leave;
  • 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);
  • According to the Fair Housing Counsel, you are to give the tenant a choice (assuming the person qualifies under the background check), i.e. they can put the person on an Occupancy Agreement or go onto a Rental Agreement.  You can’t automatically say, “OK, you must go on an Occupancy Agreement.”  [Caveat: I do not agree with this position, and do not endorse it. The consequences of putting a caregiver on a rental agreement is that you have an much stricter protocol when they violate the rules or laws – e.g. written notice and opportunity to cure, etc. I believe that caregivers and others who are there on a temporary arrangement should remain on the Temporary Occupancy Agreement. This is exactly what the agreement was designed to do. Both Rental Agreements and Temporary Occupancy Agreements only permit termination “for cause” so this is not a situation the landlord can abuse without consequences.]

 

If you did not put the caregiver on a Temporary Occupancy Agreement means that the caregiver is merely a “guest” of the tenant, and if the guest violates the rules, you have to send a 30-day notice to the tenant; if the rules continue to be violation, your only option is to terminate the tenant’s tenancy, and the caregiver is out too. But, this is not what you want to do.

 

I suggest that you consider having the caregiver sign a Temporary Occupancy Agreement.  Of course, she could refuse, but it’s worth a try. I have been successful doing so in the past.

 

If that does not work, you may consider giving the proper termination notice[2] and then filing for eviction against the tenant and “all others”, i.e. the caregiver. Then when the matter gets to court, inform the court that you don’t want to evict the tenant, only the caregiver. (I have had a judge agree to do so in the past.) You could then either ask the judge to evict the caregiver, or through the mediation that occurs in these proceedings, provide that the caregiver can stay, but only if she signs the Temporary Occupancy Agreement. 

 

By the way, if the tenant has dementia, something needs to be done through the local social service agency, since it does not sound as if he can take care of himself along. Good luck!

 


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

[2] I strongly recommend have your attorney review the 30-day notice you previously gave before sending out a repeat violation notice.  This situation is too important to get into court and have the case thrown out for a defective notice.