Answer: Does the former tenant have issues other than his lack of fiscal responsibility? You could prevent him from being a temporary occupancy based upon prior conduct, etc., but not regarding his failure to pay rent, since “in theory” a temporary occupant is not one who is sharing rent, etc. The statute (ORS 90.275) does not permit you to vet a person’s financial/employment status if they want to be a temporary occupant. If the guy has other negative issues, you can decline to put him on a temporary occupancy agreement if they are substantial and material.
The following is a summary of a recent conversation I had with the Fair Housing Council of Oregon on the issue of whether landlords can put “caregivers” on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement (or not putting them on any written agreement - which leaves in doubt their legal status if the Landlord wants them removed from the Community).
- If the assistance provider doesn’t qualify based on the background check[1] then you don’t have to accept them into the Community;
- If they violate rules of the community when they are already in the Community you can require they leave. (Of course if they are not on an Occupancy Agreement, this could mean removing the tenant if the caregiver refuses to leave, and the tenant doesn’t force them to do so);
- You can pre-qualify the current tenant as to their need for a care provider, i.e. require a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
- If they can’t provide that proof, then you don’t have to allow them into the Community as a care provider (although I can’t imagine it would be very hard to obtain such proof);
- You have to give the current tenant a choice (assuming the person qualifies under the background check), i.e. they can be on an Occupancy Agreement or go onto a Rental Agreement. You can’t automatically say, “OK, you must go on an Occupancy Agreement.”
- It is believed that if the tenant understands the risk of allowing the caregiver to be a tenant (i.e. if the caregiver is disruptive, the current tenant may have to leave also), that they will voluntarily opt to put the person on the Occupancy Agreement. (Note: This doesn’t address the problem where the person doesn’t financially qualify to be on the Rental Agreement, but I suspect FHCO would say it’s a “reasonable accommodation” by the landlord to waive that financial requirement.) This approach may be slightly unrealistic in those cases in which the tenant wants the caregiver there, and defers to what the caregiver says.
Your alternatives seem to be the following:
- If the current tenant wants them to be a care provider, can he/she establish its legitimacy? If not, you can say no.
- If the current tenant wants them as a temporary occupant, and they have been a problem in the park you can say no; I believe this is so, even though they try to go the care provider route.
- If the current tenant wants them as a “tenant” you can say no because they do not have the financial capacity to pay rent (remember, you couldn’t say that if they were to be a temporary occupant).
- If you do agree to make them a temporary occupant, have everyone sign the Temporary Occupancy Agreement and put him on a 3 or 6 month term, to see how it goes. You are under no obligation to renew – but if they are serving as a care provider on a Temporary Occupancy Agreement, you’d probably have difficulty not renewing unless there was a specific problem. (But if there was a specific problem, you likely would have already removed them. Getting temporary occupants must be “for cause” e.g. a rules violation, but there is no 30-day right to cure.)
[1] Remember, you cannot require financial capacity if they are to be a temporary occupant, but you can if they are to be a tenant.
