Phil Querin Q&A: Temporary Occupant Overstays Her Welcome

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June 13, 2017
Phil Querin
MHCO Legal Counsel
Querin Law

 

Question. I have a question about the MHCO Temporary Occupant Agreement (MHCO Form 25).  I have a friend who is a tenant in a park. He allowed a woman to move into his home with him. The landlord, the woman and he then signed a MHCO Temporary Occupant Agreement.  I do not know what the duration was, i.e. month-to-month or for a fixed term.

 

After a while the tenant realized this was a big mistake and asked her to leave; she refused.  As I understand it, the landlord has also asked her to vacate, and she again refused.  The park owner does not really want to push the issue in court.  She has told the tenant that he will have to have her legally evicted if he wants her out.

 

Recently, after she left town for several days, the tenant changed the door locks.  Upon returning and being unable to gain access, she called the County Sheriff's Office. The responding deputy told the tenant/home owner that he could not require her to leave the premises. He even said that if she forced entry, she could not be arrested for the trespass. He said she had established residency at the home, and had full legal right to remain there until a court eviction occurred.  She has been in the home beginning approximately December 2016.  The woman has never paid any rent.  

 

I would think she was committing a criminal trespass where either the landlord or the tenant revoked consent to her being at the space.  What can he do? I am interested in case I have this situation in my community.

 

 

Answer.  This sounds like a cross between Fatal Attraction and Pacific Heights! It appears your friend never saw either film, or if he did, he failed to get the message.

 

Here is a short - and not comprehensive – summary of the temporary occupancy agreement law, which is found in ORS 90.275:

 

  • The temporary occupancy agreement may be terminated by:
    •  The tenant without cause at any time; and
    •  The landlord – but only for a cause that is a material violation of the temporary occupancy agreement.
  • The temporary occupant does not have a right to cure a for-cause violation issued from the landlord.
  • Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record.
    • However, the landlord may not screen the proposed temporary occupant for credit history or income level, since they are not a “tenant” and their financial capacity to pay rent is immaterial.
  •  A temporary occupancy agreement:
    •  May provide that the temporary occupant is required to comply with any applicable rules for the premises; and
    • May have a specific ending date.
  • A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement.
  • A temporary occupant is treated as a squatter if they continue to occupy the dwelling in violation of the agreement.

 

In this case, the landlord does not appear to have a basis for termination, since you did not mention any “cause”, such as a violation of the community rules, etc.  However, since the tenant can terminate at any time, it appears that going forward, the occupant’s right to remain has been terminated, and her continued presence makes her a squatter. 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.” A squatter is not a holdover tenant.

 

Pursuant to ORS 90.110(5) the Oregon Residential Landlord Tenant Act (“ORLTA”) does not apply to squatters. Accordingly, it would appear[1] that the tenant will have to file his own eviction. No notice is necessary. The complaint would be under ORS 105.126, for occupancies in which ORLTA does not apply. 

 

As for the deputy, while his answer was technically wrong, since she had no legal right to occupy the premise after the temporary agreement was terminated, I would submit that he was interpreting the situation as he saw it at the time, not knowing the technicalities of ORLTA. And I would agree, to avoid a breach of the peace, an eviction is the safer way to go, where the squatter refuses to voluntarily leave.

 

And tell your friend to download Fatal Attraction and Pacific Heights. Together they provide a cautionary tale for the future.

 

  

 

 


[1] I am hedging here, because that statute applies where the person entered lawfully.  In this case, however, I would argue that once the tenant revoked permission and she refused to leave, she was entering possession unlawfully.