Phil Querin Q&A: Temporary Occupants and Implications for Rules and Regulations Screening and Eviction

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March 27, 2012

Question: The law and MHCO ocupancy agreement both state that a landlord can screen an occupant for conduct or criminal history but not for credit history or income level. If after screening a temporary occupant, the findings reveal that they have civil case(s) and/or eviction matters relating to previous rental history where the derogatory rental reference is financial (not necessarily bad personal conduct). Can this be grounds for denial?

Answer: Not in my opinion. The temporary occupant agreement concept is that the person is not going to be a “co-renter”. They are being permitted to come onto the space as an accommodation by the landlord to the current resident who wants them there. If they are to become a temporary occupant, but your background check inadvertently reveals derogatory references related to financial information, and that concerns you, then limit the amount of time they can remain there, and take things a month, or six months, at a time. You might consider having tenants fill out a form in advance explaining exactly why they want the temporary occupant there. If a tenant wants them there to share the rental obligation then you should know that before offering the temporary occupant status. If that is the case, then have them apply as a tenant. If they don’t pass the financial background check, then reject them on that basis.

Question: The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community. Who is responsible to provide this information to the temporary occupant and when should it be given?

Answer: I understand that the temporary occupant law does not specifically address this point. But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship. That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules. Then there is no question about whether they got them.

Question: The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does not have a right to cure the violation. The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this). If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies). However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court? If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination?

Answer: The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement. That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.” If they don’t, then the landlord can issue a for cause termination under 90.630 (for MHP tenancies) to the tenant – not the temporary occupant. That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required. The opportunity to cure is for the tenant to get the temporary occupant to vacate. If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated. In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.” ORS 90.403 then permits you to give a 24-hour non-curable termination notice to the “squatter” and evict, if necessary, through the normal FED process.