SB 282 adds a new layer to unauthorized guest rules so attorney Brad Kraus explains landlord and tenant rights under this new law.
Bradley S. Kraus
Attorney at Law, Warren Allen, LLP
Last month, this column featured a brief discussion of Senate Bill 282’s newest wrinkle for landlords to consider, the new prohibition on enforcement of unauthorized guest provisions.
As many landlords have (or will) come across unauthorized guest scenarios, it is important to further discuss what rights and remedies landlords have remaining after the passage of SB 282.
The Non-Tenant Guest rules are found within Section 14 of the bill.
It begins with a prohibition against enforcement of maximum occupancy guidelines lower than that required by law. It follows by prohibiting landlords from enforcement of any prohibition on the maximum duration of a guest’s stay. Landlords with solid rental agreement forms have provisions discussing the maximum guest stay, and this provision effectively replaces those with a “15 days in any 12-month period” rule.
The above rule is the first item to focus on. Unauthorized occupant situations are notoriously difficult to prove, as it is impossible to police the inside of your tenants’ dwelling unit. However, to trigger your rights and remedies, landlords will still have to be able to prove this threshold issue; that their tenant had a guest staying in the unit for longer than 15 days in a 12-month period. If you cannot prove that issue, there are no rights to trigger.
If landlords can prove the above, SB 282 states the landlord may then require that (a) the tenant’s guest satisfy the screening or admissions criteria used by the landlord for non-fiscal matters, and (b) the tenant and the guest enter into a temporary occupancy agreement as provided in ORS 90.275. As you can imagine, it is unlikely that many tenants and their (un)authorized guests will initiate this discussion. There is usually a reason these guests do not jump at the opportunity to apply.
So how can you protect yourself and other tenants using SB 282?
If you can prove the 15-day rule, it may help to send a warning notice pursuant to ORS 90.412 as a start. This notice will serve multiple purposes. First, it will preserve the issue, as a properly served ORS 90.412 notice will allow you to accept rent without worrying about a waiver issue.
Second, it will assist in rebutting the tenant’s inevitable contention that they did not know what they were to do before they received a For Cause Notice for violating SB 282.
If you have provided your tenant’s guest the opportunity to be screened, and they decline or fail screening, or if the tenant and guest refuse to enter into a temporary occupancy agreement, landlords have the same rights/remedies as they did before. A well-tailored For Cause Notice directed at these failures/refusals will require that individual to vacate the unit. If they do not, the landlord may be able to file an eviction, based upon that Notice.
The law continues to evolve, as new issues arise every day. It is important for landlords to continue to focus on their rights and, even more importantly, how landlords can use those rights to protect their other tenants.
While SB 282 adds a new layer to unauthorized guests, the threshold issues are the same. If the guests fail screening, refuse to enter into temporary occupancy agreements allowed by law, or cause issues during their stay in the premises, landlords should act to remove those individuals using the tools with which they are familiar.
Brad Kraus is a partner at Warren Allen LLP. His primary practice area is landlord/tenant law, but he also assists clients with various litigation matters, probate matters, real estate disputes, and family-law matters. A native of New Ulm, Minnesota, he continues to root for Minnesota sports teams in his free time. You can reach him via email kraus@warrenallen.com or 503-255-8795.
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