Phil Querin Q&A: Roaches and You!

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July 27, 2013

Question: Community owner owns a home and discovers that the home is infested with roaches. The community owner blames the resident and hires an exterminator. Can the exterminator enter the house? What kind of notice would be required? Can the landlord force the resident to pay for the extermination?

Answer: Since the tenant does not own the home, the answer is found on the general landlord-tenant side of ORS Chapter 90 (as opposed to the manufactured housing side). Here is a summary of the tenant duties under ORS 90.325: • Use the parts of the premises including the living room, bedroom, kitchen, bathroom and dining room in a reasonable manner considering the purposes for which they were designed and intended. • Keep all areas of the premises under control of the tenant in every part as clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, as the condition of the premises permits and to the extent that the tenant is responsible for causing the problem. The tenant shall cooperate to a reasonable extent in assisting the landlord in any reasonable effort to remedy the problem. • Dispose from the dwelling unit all ashes, garbage, rubbish and other waste in a clean, safe and legal manner. With regard to needles, syringes and other infectious waste, as defined in ORS 459.386, the tenant may not dispose of these items by placing them in garbage receptacles or in any other place or manner except as authorized by state and local governmental agencies. • Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits. • Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances including elevators in the premises. • Test at least once every six months and replace batteries as needed in any smoke alarm, smoke detector or carbon monoxide alarm provided by the landlord and notify the landlord in writing of any operating deficiencies. • Behave and require other persons on the premises with the consent of the tenant to behave in a manner that will not disturb the peaceful enjoyment of the premises by neighbors. The underscored portion above clearly applies. The next question is the right of access. That is covered in ORS 90.322. The statute is quite long and complicated. Here is a summary of the relevant portions applicable to your situation: • A landlord or, to the extent provided in this section, a landlord’s agent may enter into the tenant’s dwelling unit or any portion of the premises under the tenant’s exclusive control in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, perform agreed yard maintenance or grounds keeping or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors. The right of access of the landlord or landlord’s agent is limited as follows: • In case of an emergency, a landlord may enter the dwelling unit or any portion of the premises under a tenant’s exclusive control without consent of the tenant, without notice to the tenant and at any time. “Emergency” includes but is not limited to a repair problem that, unless remedied immediately, is likely to cause serious damage to the premises. If a landlord makes an emergency entry in the tenant’s absence, the landlord shall give the tenant actual notice within 24 hours after the entry, and the notice shall include the fact of the entry, the date and time of the entry, the nature of the emergency and the names of the persons who entered. • If the tenant requests repairs or maintenance in writing, the landlord or landlord’s agent, without further notice, may enter upon demand, in the tenant’s absence or without the tenant’s consent, for the purpose of making the requested repairs until the repairs are completed. The tenant’s written request may specify allowable times. Otherwise, the entry must be at a reasonable time. The authorization to enter provided by the tenant’s written request expires after seven days, unless the repairs are in progress and the landlord or landlord’s agent is making a reasonable effort to complete the repairs in a timely manner. If the person entering to do the repairs is not the landlord, upon request of the tenant, the person must show the tenant written evidence from the landlord authorizing that person to act for the landlord in making the repairs. • A landlord may not abuse the right of access or use it to harass the tenant. A tenant may not unreasonably withhold consent from the landlord to enter. • If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement under ORS 90.392 and take possession as provided in ORS 105.105 to 105.168. In addition, the landlord may recover actual damages. You have two choices in this situation: (a) Declare an emergency and enter to remediate the problem, carefully following the provisions of the access statute; (b) Try to secure the tenant’s consent to have an exterminator enter and remediate the problem; (c) Terminate the tenancy and then fix the problem. Note that if you seek consent and the tenant refuses, you cannot then enter under the emergency provisions of the law, since the tenant has already refused access. As for damages, yes you can recover the cost, assuming that the exterminator confirms that this was a tenant caused problem.