Phil Querin Q&A: Tenant Sub-Leases - Refuses Background Check

Want access to MHCO content?

For complete access to forms, conference presentations, community updates and MHCO columns, log in to your account or register.

October 30, 2013

Question: An occupant lives in a home that is sub-leased from his parents who have moved to Arizona. The occupant has been in the house since the beginning of January, and pays his rent on time. Although he was asked to complete and submit a criminal background check, he still has not done so. Accordingly, we have not given him a written rental agreement to sign. What are our rights at this point in time?

Answer: There are several issues here. One, you’ve accepted rent from the occupant for the last several months. For all intents and purposes, you have accepted him as a tenant – even though he is not there on a written rental agreement and even though you have no criminal background check on him. Even if your rules prohibit subleasing, that too, has been waived. In other words, all of the breaches you could have enforced against him and/or the tenants who subleased, have been waived and are now unenforceable. Here are the rules on waiver that apply in this situation [ORS 90.412]. While they are of no help in this situation, they may be helpful in the future. A landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord: • During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or • Accepts performance by a tenant that varies from the terms of the rental agreement. • A landlord has not accepted rent for purposes of subsection (2) of this section if: o Within 10 days after receipt of the rent payment, the landlord refunds the rent; or o The rent payment is made in the form of a check that is dishonored. • A landlord does not waive the right to terminate a rental agreement for a violation under any of the following circumstances: o The landlord and tenant agree otherwise after the violation has occurred. o The violation concerns the tenant’s conduct and, following the violation but prior to acceptance of rent for three rental periods or performance, the landlord gives a written warning notice to the tenant regarding the violation that: • Describes specifically the conduct that constitutes the violation, either as a separate and distinct violation, a series or group of violations or a continuous or ongoing violation; • States that the tenant is required to discontinue the conduct or correct the violation; and • States that a reoccurrence of the conduct that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392, 90.398, 90.405 or 90.630. o The tenancy consists of rented space for a manufactured dwelling or floating home, and the violation concerns: • Disrepair or deterioration of the manufactured dwelling or floating home; • A failure to maintain the rented space; • The termination is under ORS 90.396 [24-hour notices]. o The landlord accepts: • A last month’s rent deposit collected at the beginning of the tenancy, regardless of whether the deposit covers a period beyond a termination date; • Rent distributed pursuant to a court order releasing money paid into court; or • Rent paid for a rent obligation not yet due and paid more than one rental period in advance. • For a continuous or ongoing violation, the landlord’s written warning notice remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months. • A landlord that must refund rent shall make the refund to the tenant or other payer by personal delivery or first class mail. The refund may be in the form of the tenant’s or other payer’s check or in any other form of check or money. The most important thing you should do at this point is to try to determine if this occupant is a sexual predator. Oregon laws were revised a few years ago to provide that if an occupant is determined to be a predatory sex offender under ORS 181.585 to 181.587, you may unilaterally issue him a 30-day notice to vacate. [See, ORS 90.630(1)(c)]

Location Tags: