Phil Querin Q&A: Temporary Occupant Stealing Electrical Power

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April 1, 2014

Question: The owner of a manufactured home community discovers that a temporary occupant in his community is stealing electrical power. PGE and the Portland Police have been out to the community and investigated the theft. He is also growing marijuana in the home but has a medical marijuana card. What notices does the landlord serve this household keeping in mind that he is the temporary occupant? Who does the notice go to, the occupant or the resident or both? The resident, who is the occupant’s mother, shows no inclination to deal with this problem.

Answer: Assuming that the landlord has a temporary occupancy agreement in place, the answers are found in ORS 90.275 (Temporary occupancy agreement; terms and conditions). Specifically: • The temporary occupancy agreement is between the landlord, tenant and temporary occupant – all must sign. • The temporary occupant does not have the same rights as a tenant under the landlord-tenant law. • One may terminate the temporary occupancy agreement as follows: o Only for cause that is a material violation of the temporary occupancy agreement ; presumably the theft constitutes a material violation under your rules and regulations which the temporary occupant is required to comply with; it is certainly a violation of law, which would suffice. o The temporary occupant does not have a right to cure the violation; o Legally, you do not have to give written notice of termination to the temporary occupant. However, in this case, I would do so, just for the record, and to make it clear that a notice of termination was, in fact, given. o The temporary occupant is required to “promptly vacate” upon receipt of the notice. I suggest you give him/her a couple of days, just to avoid an issue. o Although the statute doesn’t expressly require it, I would copy the resident on the notice. • If, after you give the notice, the temporary occupant sneaks back in the evenings, as seems to occur frequently, you should give the temporary occupant a formal “No Trespassing” letter, with a copy to the resident. It would be preferable if you had these notices personally delivered if you can. Then if the temporary occupant comes back, you may call the police to have him/her removed. • Alternatively, except as provided in ORS 90.449 (the statute protecting victims of domestic violence), a landlord may terminate the tenancy of the resident under ORS 90.630 (the statute permitting for-cause terminations) if the temporary occupant fails to promptly vacate the dwelling, or if the resident materially violates the temporary occupancy agreement. • A temporary occupant shall be treated as a squatter if he/she continues to occupy the dwelling unit after you have terminated the temporary occupancy agreement. o ORS 90.100 (41) 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.” o The landlord-tenant statutes do not have a specific provision dealing with eviction of “squatters.” Although it implies you could have them forcefully removed, I would not attempt any self-help remedies. Rather, you could simply file an eviction, attach a copy of the termination notice, and proceed from there. Alternatively, you could proceed against the temporary occupant and the mother, if she did nothing to make sure he was out. If all else fails, I prefer the former approach, since frequently, a parent - especially an aged parent – is simply not capable of insisting that the son/daughter leave, and I don’t believe that failure alone, should result in them losing their right to remain in the community. • Before entering into a temporary occupancy agreement, the law permits landlords to screen the proposed temporary occupant for issues regarding conduct or for a criminal record. If that was not done in this instance it should have been. (Note that a landlord may not screen the proposed temporary occupant for credit history or income level.) Lastly, I see no significance in the temporary occupant having a marijuana card. It isn’t a license to steal.