Phil Querin Q&A: Resident Hospitalized in Coma Visiting Friends and Family Want to Stay in Home

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July 19, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

Question. A resident living alone is in a coma in the hospital.  Family and friends have arrived and insist in staying at the resident’s home.  What should the manager do?  How does the manager even know if these people should be allowed in the house?  What are the park’s rights and what notice would you use to resolve the issue?

 

Answer.  This issue is not dissimilar to one asked recently where the hospitalized resident’s sister came as a concerned family member and, bringing her small child, wanted to stay at the home which was located in a 55+ community.

 

My response then, s here, is that ORS Chapter 90, like most laws, is enacted to address essentially 80% of the most commonly observed landlord-tenant issues. That leaves the other 20% to be dealt with on an ad hoc basis, i.e. as they arise. This situation raises issues that do not have a direct answer under the law.

 

Here, the issue deals, perhaps more directly, with what authority management has to permit friends and family to reside in the home of the comatose resident? Without some assurance that any of these folks would be permitted to stay in the home, the answer is a bit easier than whether a visiting sister with a small child is in violation of the 55+ park rules (she was not).

 

The most conservative answer is, to me, the best one; unless there is some basis for granting consent, I would not permit anyone to occupy the home, other than the resident. You have no knowledge of the visitor’s backgrounds, and permitting them to encamp in the resident’s home could pose problems to other residents.

 

The Oregon landlord-tenant law contains nothing one could point to that would authorize management to turn over possession to friends and family. Even family alone, should not be permitted access. There are simply too many things that could go wrong, and families can do strange things when a member passes away.[1]   

 

  • Like taking items from the home that now belong to the estate;
  • Like moving in and claiming the home was “inherited”;
  • Like selling the home and retaining the proceeds, etc.

 

And what if the resident recovers?  Will there be issues when he/she wants to return home, and one or more persons are staying there? What if valuables are missing?

 

The take-away is this: Absent some fairly clear instructions from the resident, or the attorney-in- fact under a durable power of attorney, the downside in permitting occupancy far outweighs any upside. Your explanation should be simple and straight forward: Oregon law does not authorize you to turn over possession of a resident’s home to any unauthorized third parties. Under no circumstances should you accept any rent payments from them.

 

Lastly, if the friends and family are already staying in the home, you have a different set of problems. These folks are squatters, in that they did not enter into possession under any legal claim of right.  ORS 90.100(43) defines a “Squatter” as:

 

… a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. “Squatter” does not include a tenant who holds over as described in ORS 90.427 (7).

 

Accordingly, you should first try to get them to vacate immediately and peaceably. If they refuse, your only alternative is to file for eviction against them. You do not need a written notice, since this case does not arise under the Oregon Residential Landlord-Tenant Act. You should contact an attorney familiar with eviction law, who can assist you in using the proper summons and complaint. (See, ORS 105.126)  Once filed, the case will proceed in much the same fashion as all other evictions. 

 


[1] Remember that the abandonment law has a specific protocol upon death of a resident living alone. Management is required to secure the home, issue a 45-day letter, and give the estate the same rights as a lienholder, with the obligation to pay storage fees and maintain the home until removal or resale. And no one may occupy the home. See, ORS 90.675(21).