Phil Querin Q&A: Meth User and Eviction

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September 28, 2015
Phil Querin
MHCO Legal Counsel

 

Question:  We have a resident who was recently arrested for meth possession in the park and for a variety of other offenses (identity theft, etc.). We want evict the tenant for the meth possession. The 30-day notice of termination under ORS 90.630 is curable, and MHCO’s Form #43 for a violation asks us to describe the remedy. But we want the resident out for good. Is there a remedy in this case that will work?   
 

 

 

Answer:  You are correct that ORS 90.630  may only be used to give residents notice of a violation and an opportunity to cure.  This is not so say you couldn’t use a 30-day notice in this case, but the “cure” would be for the resident to stop possessing the meth, which would be highly difficult to verify. Moreover, in many cases, the possession of meth can be accompanied by other activities that can pose health, safety, welfare, and peaceable enjoyment, issues to the other residents of your community.

 

ORS 90.396(1) provides in relevant part:

 

Except as provided in subsection (2) of this section, after at least 24 hours written notice specifying the acts and omissions constituting the cause and specifying the date and time of the termination, the landlord may terminate the rental agreement and take possession as provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings), if:

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(f) The tenant, someone in the tenants control or the tenants pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection [i.e. committing serious injury to persons and property in the community, etc. – PCQ]but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to othersAn act that is outrageous in the extreme is more extreme or serious than an act that warrants a 30-day termination under ORS 90.392 (Termination of rental agreement by landlord for cause)Acts that are outrageous in the extreme include, but are not limited to, the following acts by a person:

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(B) Manufacture, delivery or possession of a controlled substance, as described in ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980), but not including [Oregon marijuana exceptions - PCQ]….(Underscore mine.)

 

 

 

 

 

Note that ORS 90.396(1)(f)(B) expressly says that the manufacture, delivery, or possession of a controlled substance constitutes an act that is “outrageous in the extreme.”  Accordingly, it is not proscribed conduct that is open to debate about whether it may be “cured” within thirty days.  Illegal drug possession is considered an automatic violation of the law.

 

Accordingly, the use of a 24-hour notice (MHCO form #   ), would be appropriate in this case. However, just because the statute and form refer to “24-hours” does not mean you must require the resident to vacate within that time.  It just means you cannot give less than 24-hours’ notice.

 

This answer assumes that the resident’s possession occurred “…on the premises (i.e. the space) or in the immediate vicinity of the premises.” If not, that is, while he was arrested inside the community, the possession occurred outside of the community, your reliance ORS 90.396(1)(f)(B) would be inappropriate and would likely fail.

 

Additionally, based on your question, I cannot tell if the resident is causing any other problems in the community. Nor can I tell if he is – or will shortly be – in jail.  Assuming that he is released and comes back into the community, you could give him the 24-hour notice, but provide the time period for compliance to be a few days, which would perhaps allow him the ability to relocate, rather than be out on the street.  Based upon the urgency of having him out – assuming he returns – this call is up to you. 

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