Phil Querin Q&A: Dealing With A Troublesome Caregiver

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January 26, 2015
Phil Querin
MHCO Attorney
Querin Law

 

Question: We have a tenant whose son (age 65) is her caregiver.  They spend winters in Southern California.  The son/caregiver used to work for us a few years ago, but was fired due to his terrible attitude and disrespect for management.  The situation has continued to worsen, and he has filed false complaints against the park with the DEQ over our wastewater.

 

He submitted a Temporary Occupant Agreement (MHCO #25) dated March 13, 2013, containing an expiration date of November 2049.  Obviously, we would not accept that request.  We have spoken to the Oregon Fair Housing Council, and they advised us that a resident is entitled to have the caregiver of their choice, and if we resisted he could possibly take the case to BOLI and we would not prevail, with a very costly defense.

 

Since then we sent him a revised Temporary Occupant Agreement, identifying that it was a “reasonable accommodation compromise,” setting forth specific conditions limiting his interactions with management and physical proximity to the wastewater plant.  After no response, we again spoke with a Fair Housing Council representative again, and they stated they would contact the resident and her care provider to ask them to send the signed agreement back to us.  So far, we have never received it back, so currently, he does not have any written agreement with us for his occupancy, temporary or otherwise.

 

We are concerned that when his elderly mother passes away, he will apply for occupancy.  We do not believe that he could pass our income requirements for residency.  He currently does “handy man” jobs for other residents, and likely cannot demonstrate sufficient income. 

 

Two weeks ago he took his mother to Southern California for the winter and returned without her.  It is unclear if he will stay through the winter, or return to California.  Can we write him a letter saying that as a caregiver, he is not allowed to be here without her?  

 

Answer:  Before getting into specifics, here is a rule you and all community owners and managers should never forget:

 

In most disputes, the lapse of time without resolution favors the tenant.

 

In your situation, this issue could have and should have been nipped in the bud. Since that has not been the case, you now take the risk that he, or his attorney, could argue that you have waived your rights to require him to vacate.

 

Now to the point:

 

  1.  I disagree with the Oregon Fair Housing Counsel, if I correctly understand their initial response.  Just like with all such issues, a resident is no more entitled to permit a mean, contentious, threatening care giver in the community than it would be in permitting a known dangerous assistance animal.  A balance must always be reached between granting the resident their Fair Housing rights, and the peace, safety, and quiet enjoyment of the rest of the community.

 

  1. While some may disagree with me here, I believe that the Temporary Occupancy statute, ORS 90.275 can be very helpful in this type of situation.[1]  But the issue should have been resolved long ago.  Once you have someone on a signed Temporary Occupancy Agreement containing a fixed term, you have a degree of control that you did not have before. I would suggest that he be placed on a Temporary Occupancy Agreement for, say, six months, with a commitment that you will renew it for another six months, so long as he does not cause further disturbances, etc.  [The Fair Housing law would likely require this commitment, and I agree.]  

 

  1. Here are the statutory rules regarding temporary occupancy:
  • The temporary occupant is not a tenant entitled to occupy the dwelling unit to the exclusion of others;
  • He/she does not have the rights of a tenant;
  • The temporary occupancy agreement may be terminated by the tenant [in this case the elderly mother] without cause at any time and 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:
    •  May provide that the temporary occupant is required to comply with any applicable rules for the premises; and
    • 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 must 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;
  • Subject to certain exceptions, the landlord may terminate the tenancy of the tenant if the temporary occupant fails to promptly vacate the dwelling unit or if the tenant materially violates the temporary occupancy agreement;
  • A temporary occupant may be treated as a “squatter” if he/she continues to occupy the dwelling unit after a tenancy has ended or after the tenant revokes permission for the occupancy by terminating the temporary occupancy agreement; and
  • A tenancy may not consist solely of a temporary occupancy. Each tenancy must have at least one tenant.  [Emphasis added.]

 

  1. As you can see with the last rule, the son may not occupy the dwelling in the absence of his mother being there as a resident.  If the mother is in Southern California and he is living in the home during her absence, he is starting to look like a “tenant” and not a caregiver.  At the risk of him morphing into a “tenant,” you cannot permit this to situation to continue.

 

  1. ORS 90.100(43) defines a “squatter” as a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. Oregon landlord law does not apply to squatters, meaning that they do not have the protection of tenants.  However, since you do not have the son under a Temporary Occupancy Agreement, his status is up in the air.

 

  1. If the son remains in the home, while his mother resides in Southern California, he should not be permitted to stay there. Technically, he cannot do so as a caregiver or a temporary occupant.  If you can meet the following requirements, your rights would appear to be governed by ORS 90.403(1) (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.

   

  1. If you do not meet the above statutory criteria, then your best bet is to get him on a Temporary Occupancy Agreement, making sure that he still understands that he cannot remain in the home while his mother is living – albeit temporarily – in Southern California.
 


[1] Some might say that just as you cannot required a “Pet Agreement” for an assistance animal, my response is that the Temporary Occupancy Agreement can, in my opinion, set forth “rules” for the caregiver, which, if not unreasonable, would be proper.  In this case, for example, your “reasonable accommodation” to the resident’s request that you permit her son to be her caregiver, is to say “Yes, but given his prior known history, these are the rules.”  

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