Phil Querin Q&A: Failure To Put Agreement In Writing – Failure to Qualify Resident

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December 18, 2017
Phil Querin
MHCO Legal Counsel
Querin Law

 

 

Q:        A resident was having difficulty in selling their home in a manufactured home community.  The resident was eventually transferred to California, and the landlord decided to be cooperative and allow the resident’s niece to move in to the home until it was sold.  The landlord had the niece filled out a complete application and did a background check.  The landlord accepted the application, but did not send an acceptance or denial letter to the resident.  The landlord also did not have the niece sign a rental agreement.  Now 14 months later the home has still not been sold and the former resident’s niece is still living in the home.  The niece has been late on numerous occasions in paying rent, does not maintain the home and has an illegal dog (over the 20 lb limit).  The landlord wants to take action, but the niece claims that he cannot take any action because there is no signed rental agreement.  What can the landlord do at this point as far as sending 72 hour notices for late payment, notices for maintenance and notices for the illegal dog?  What did the landlord do wrong in the application process?

 

 

A:        The landlord did several things wrong:

(a) he/she failed to reduce the agreement to writing, saying, for example, that the niece had to comply with all of the rules and regulations, that she was responsible for the rent, and generally fully memorializing the arrangement. 

(b) the landlord failed to fully qualify the niece and failed to have her sign a rental agreement (or occupancy agreement) before taking possession.  However, none of this means that the landlord is not without a remedy. 

The original resident is still the tenant under the rental agreement and still responsible for the rent.  It is quite possible that the niece is also a “tenant” in a legal sense.  The landlord could and should be sending out 72-hour notices to the space naming both the resident and the niece.  If the landlord has the phone number of the original resident, he/she should let them know what is going on.  Under 90.630 if three or more 72-hour notices are sent with any 12 month period, the landlord may then issue a 30-day non-curable notice of termination.  I suggest at least 4 such notices, just to be on the safe side.  A more risky (and untested) approach, is to simply issue a 30-day notice of termination under the general (i.e. non-manufactured housing section of the law) landlord tenant law.  It is my opinion that the landlord would be within their right to do so, since the occupant is not the owner of the home and the owner of the home is not the occupant.  The manufactured housing section of the law – which requires that all notices be “for cause” does not technically apply here because of this distinction.  However, before proceeding down this path, the landlord should obtain legal advice.

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