Phil Querin: Q&A: Death of a Tenant While Temporary Occupant Residing in Premises

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October 20, 2015
Phil Querin
MHCO Legal Counsel
Querin Law

Question:  A resident passed away in our community. There was a person living in the home at the time under a Temporary Occupant Agreement. However, it does not expire for several more months. Rent is paid up until the end of the month. What should the landlord do? Can he/she give a notice longer than the 24 hour notice of eviction which seems cruel given the circumstances? Should he/she use a 30 day notice? Should management accept rent from the temporary occupant for the following month?
 

 

 

Answer:  All good questions. Here is what ORS 90.275 says about temporary occupant agreements:

  • To create a temporary occupancy, the landlord, tenant and proposed temporary occupant must enter into a written temporary occupancy agreement (See, MHCO Form No ___.)
  • The temporary occupant:
    •  Is not a tenant entitled to occupy the dwelling unit to the exclusion of others; and
    • Does not have the rights of a tenant.
  •  The temporary occupancy agreement may be terminated by:
    •  The tenant without cause at any time; and
    •  The landlord – but only for a cause that is a material violation of the temporary occupancy agreement.
  • The temporary occupant does not have a right to cure a for-cause violation issued from the landlord.
  • Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record.
    • However, 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 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.
  • Except as provided in ORS 90.449 (Landlord discrimination against victim), the landlord may terminate the tenancy of the tenant as provided under ORS 90.392 (Termination of rental agreement by landlord for cause) or 90.630 (Termination by landlord) if the temporary occupant fails to promptly vacate the dwelling unit or if the tenant materially violates the temporary occupancy agreement.
  • A temporary occupant shall be treated as a squatter if the temporary occupant 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.
  •  A landlord may not enter into a temporary occupancy agreement for the purpose of evading landlord responsibilities under ORS Chapter 90 or to diminish the rights of an applicant or tenant under this chapter.
  • A tenant under a rental agreement may not be turned into a temporary occupant in the tenants own dwelling unit.
  • A tenancy may not consist solely of a temporary occupancy - each tenancy must have at least one tenant.

 

So, to answer your question based upon the above rules, once the tenant passed away, the temporary occupant’s right of occupancy ended, and it cannot be renewed, since there is no “tenant” to also reside there.  Temporary occupants cannot occupy the premises alone.  Here’s my thinking:

 

  • The temporary occupancy law does not contemplate that the person residing at the premises will be paying rent. That is why landlords may not pre-qualify temporary occupants based upon their financial capacity. If that was the intent in this case, you should have had the person apply for tenancy and become a co-tenant.
  • Accordingly, you should not accept rent from the temporary occupant.
  • You should try to find out who the next of kin are and learn what they intend to do with the home;
  • It’s possible, perhaps that if the estate wants to sell the home (which they have a right to do) the temporary occupant can purchase it and apply for tenancy (he/she should not complete any purchase until they qualify for tenancy).
  • Otherwise, if the temporary occupant can make arrangements to vacate within a reasonable time (e.g. a couple of weeks) you can agree to this, perhaps in a short written agreement, but it should not accompany the payment of rent;
  • Technically, the space was rented out until the end of the month, so not accepting rent for a few days into the following month should not be a hardship to you.  Moreover under the abandonment statutes, once you issue a 45-day abandonment letter to the proper parties representing the estate, it is responsible for payment of the storage fee (which may not exceed current rent) going forward until removal or resale during the ensuing twelve months. See ORS 90.675(20).
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