Phil Querin Q&A: Death of Tenant in Community Owned Home Disposal of Personal Property

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August 6, 2018
Phil Querin
MHCO Legal Counsel
Querin Law

 

Question: I have a question regarding a resident’s death in our community where the only thing he left was his personal belongings and cars on the space. The landlord owned the home and had been subleasing to the resident. After he passed away, his foster brothers were notified, and they have gone through the home, and presumably took what they wanted. There is no will.  What does the landlord do at this point?  How would this be different if the resident owned the home?

 

 

Answer:  First, remember that if the resident who is occupying the home is NOT the owner of the home, the manufactured housing section of the Oregon landlord-tenant law (ORS 90.505 et seq.) does NOT apply. This means that the applicable law is that which applies to tenants in apartments and single family homes.  This portion of the landlord tenant law is more landlord-favorable – at least in terms of timing. MHCO is currently in the process of developing a form for abandoned personal property, other than manufactured homes located inside of parks.

 

In this case, ORS 90.425 applies. Although this is the abandonment law, it is limited to such things as personal property, motor vehicles, RVs, and manufactured homes not located in a park. If you have ever done an abandonment of a home in your community, ORS 90.675 applies. Although the protocols are much the same, there are some material differences. Here is a summary of the law addressing your question:

 

  1. Automobiles. 
    1. You must determine if there are any lienholders;
    2. You must also determine if the owner of the vehicle is different that the deceased resident;
    3. You must send a written abandonment letter[1]:
      1. By first class mail to the deceased tenant at the premises[2];
      2. Personally deliver or send it by first class mail to any heir, devisee, personal representative or designated person, if actually known to the landlord; and
      3. Sent it by first class mail to the attention of an estate administrator of the Department of State Lands.
    4. The letter must give the heir, devisee, or personal representative of designated person, not less than 45 days to notify the landlord of their intent to claim the vehicle(s), and allow them not more than 15 days (or such longer period as agreed to by the parties) to actually pick it/them up.
    5. If the recipient does not pick up the vehicle(s), the landlord may sell it/them at a public or private sale, or if the reasonable current fair market value is $1,000 or less or so low that the cost of storage and conducting a public sale probably exceeds the amount that would be realized from the sale, may sell certain items and destroy or otherwise dispose of the remaining personal property.
    6. The vehicle(s) may be stored at the space, or stored at a commercial storage company, or other place of safekeeping;
    7. NOTE: This is an abbreviated version of the process, and should not undertaken without expert assistance.
  2. All Other Personal Property
    1. The written notice of abandonment must be sent to the same persons as for the vehicle(s);
    2. The heir, devisee, or personal representative of designated person must be given not less than five (5) days if the notice is personally delivered, or eight (8) days if mailed, to notify the landlord if they intend to pick up the personal property, and not more than fifteen (15) days (or such longer period as agreed to by the parties) to actually pick it up.
    3. If the personal property is not picked up, the same protocol applies as fore vehicle(s);
    4. The personal property may be stored at the space, or stored at a commercial storage company or other place of safekeeping[3];

A word of caution: Until the letter is sent, both of the abandonment statutes, ORS 90.425 and ORS 90.675, are not clear about the landlord’s legal responsibility for “safekeeping” of a resident’s abandoned property. However, there is no question that the landlord does have that responsibility once the abandonment has been declared by issuance of the letter.

 

This means that you can secure the personal property, either by removing it from the home, or, in this case, with the owner’s consent, secure it in the home, and prohibiting access. The reason I bring this up is because you mentioned that the foster brothers gained access to the home and apparently removed what they wanted.

 

Yet, ORS 90.425(21) provides:

 

(d) The landlord shall allow a person that is an heir, devisee or personal representative of the tenant, or an estate administrator of the department, to remove the personal property if the person contacts the landlord within the period provided by [ORS 90.425(25)], complies with the requirements of this section and provides the landlord with reasonable evidence that the person is an heir, devisee or personal representative, or an estate administrator of the department. (Emphasis added.)

 

(e) If neither an heir, devisee nor personal representative of the tenant, nor an estate administrator of the department, contacts the landlord *** the landlord shall allow removal of the personal property by the designated person of the tenant, if the designated person contacts the landlord within that period and complies with the requirements of this section and provides the landlord with reasonable evidence that the person is the designated person.

 

(f) A landlord who allows removal of personal property under this subsection is not liable to another person that has a claim or interest in the personal property. (Emphasis added.)

 

Subsection (f) is as important for what it doesn’t say, as what it does, i.e. the landlord’s failure to follow the statute could result in liability, e.g. to the heirs, etc., whose property was released to persons not so entitled.

 

So the take-away here is this: In the case of residents living alone, park records should be updated to determine (a) if there is a will; and (b) who should be notified in the event of death or disability.

 

And lastly, rather than allowing various persons entry into the home of a deceased resident, it is more prudent to immediately send out an abandonment letter, which gives you automatic power to “secure” the decedent’s personal property, until the proper persons can be identified to remove it.

 

If the resident owned the home, you would have proceeded under ORS 90.675 (for abandoned homes in a park), which is much the same as ORS 90.425 (for personal property only), except that in the case of abandoned homes in parks, the 45-day letter gives the estate 30 days to remove the home or enter into a storage agreement, for its resale; and since the home is subject to a personal property tax, the tax assessor and/or collector would have to be notified with the 45-day letter.

 


[1] The information contained in this letter is much the same as that when a manufactured home is abandoned in a park. See, ORS 90.425(5).

[2] The notice must refer to the heir, devisee, personal representative, designated person or estate administrator of the department, instead of the deceased resident.

[3] If the deceased resident owned the home, the personal property could be stored there, as well.

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