Phil Querin Q&A: Family Feud After Resident Dies

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October 17, 2018
Phil Querin
Querin Law
MHCO Legal Counsel

 

Question:  A resident died last month in our community, leaving three adult daughters.  Two of the daughters have been issued “No Trespassing” notices from management because of past bad behavior.  One of the daughters barred from the community is the executor of the will.  The manager has changed the locks on the home.  The three daughters have demanded entry to remove items and provided our manager with the will.  The daughters do not get along.  What can our manager do?  Set specific times for them to enter and remove items?  The daughters are angry at our manager and each other - accusing the manager of removing items from the home as well as blaming each other.  Last night they surrounded our manager and verbally abused her.  What are the manager’s rights?  Does she have to let them on the property?  Does she need to record everything that is removed from the home?  How does she handle the two daughters who have been trespassed from the community?

 

 

Answer:  Wow! Too bad Jerry Springer no longer has a show. They could just fight it out in front of a live audience. 

Surprisingly, there is a fairly straightforward answer. Under ORS 90.675(19) death triggers the abandonment statute. But before I get into that, understand that under the abandonment law, management has a duty of safekeeping for the home and the personal property. This means that management may - and in this case must – secure the home and its contents. So immediately upon issuing the 45-day letter, the locks can be changed, and access forbidden except by appointment, and by consensus. One sister should not be allowed to go in without the others being present. From that point forward, the statute doesn’t give any guidance, so the rule of reason applies.

Here are my thoughts:

  • Require that they first take an inventory of the contents; if they cannot agree upon a methodology, tell them to hire someone to do it. Until that happens, individual access should not be permitted. 
  • Once an inventory is taken, the executor would have responsibility to the court (if there is a probate) to provide it to the court.
  • Without know when the will says, it’s hard to know whether there are special bequests, etc., but this is why the sisters should not be allowed access to pick and choose what to remove.
  • Your manager should not become a referee or a punching bag.
  • In addition to issuing the 45-day abandonment letter, the estate is responsible to enter into a Storage Agreement that requires it to pay the monthly storage fees (i.e. equal to the monthly rent). This should get their attention, since the longer they fight, the longer it will be before the estate is settled and the home sold. Under the abandonment law, the landlord has a right to all of the accrued storage fees from the home sale proceeds.
  • My thinking about the sisters who have received the No Trespassing notice, my suggestion is to tell them it will remain in force, unless they commit to following management’s protocols for access.
  • ORS0.675(21)(g) and (h) provide:

“If the [personal] representative or [designated] person violates the storage agreement, the landlord may terminate the agreement by giving at least 30 days’ written notice to the representative or person stating facts sufficient to notify the representative or person of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative or person.”

 

“Upon the failure of a representative or person to enter into a storage agreement as provided by this subsection or upon termination of an agreement, unless the parties otherwise agree or the representative or person has sold or removed the property, the landlord may sell or dispose of the property pursuant to this section without further notice to the representative or person.”

 

Conclusion.Make sure that that no effort is made to sell the home without first having the purchaser qualified by Management. If the sisters cannot rationally resolve the issue, management has the right to simply proceed with the abandonment sale, and the law will determine how the proceeds are to be distributed.   

 

 

 

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