Tenant issues around occupants, sublessors and squatters have increased during the pandemic.
Bradley S. Kraus
Attorney at Law, Warren Allen, LLP
One of the most common issues I have encountered in my time as a landlords’ attorney is dealing with unauthorized individuals living in my clients’ properties.
These issues have only increased with COVID-19. If you have been a landlord long enough, you have likely heard individuals utter the words “squatter’s rights” or some other formulation of the phrase.
Such rights do not exist in the Oregon Residential Landlord and Tenant Act. Oddly enough though, without a strong rental agreement, arguing that an individual is living in the premises without your consent can also be the most difficult tenant default to prove.
The above point is clearer when you think about how to prove someone is actually “living” somewhere. After all, it would be awkward—and illegal—to set up cameras in your tenants’ leased premises. It is important to remember that the phrase “unauthorized occupant” appears nowhere in the ORLTA. Therefore, landlords are left with what their rental agreements define as an “unauthorized occupant” in framing the default under the ORLTA.
If you have a solid rental agreement from any reputable company, it will likely contain a prohibition against individuals occupying the premises without the consent of the landlord. If you think you have an unauthorized occupant, your first step is to analyze the amount of time your rental agreement allows someone to stay or visit the premises before becoming an unauthorized occupant. That is the easy part; proving someone lives somewhere—as opposed to a tenant having a friend visiting—can prove daunting.
Before considering whether to serve a notice upon a tenant for an unauthorized occupant, you should confer with your attorney about your chances of success, should such an issue be challenged. The question I ask my clients is, “How do you know he/she/they live there?” A hunch simply will not do. Seeing someone every couple of days also likely will not suffice—after all, your tenants can have friends visit. However, if you see the unauthorized occupant’s car parked overnight—arriving at night, leaving in the morning—or if this new individual begins receiving packages at the premises, such evidence may be useable.
Subletting is a similar issue to unauthorized occupants. There are no express prohibitions in the residential portion of the ORLTA against subletting. Hence, the same rules and potential proof issues apply to subletting issues. Ensuring your rental agreement contains an express prohibition against assignment and subletting is the first step. Proving that you have a sublessor is the largest hurdle in the race. With the advent of sites like AirBnB and Craigslist, if your premises is listed on one of these sites—as they often are—such evidence will be useful as you and your attorney navigate a way forward.
Finally, I have encountered many situations during COVID-19 where tenants simply abandon a dwelling unit, and random people appear to take their place. If this issue arises, you may have rights under the unauthorized possessor statute—ORS 90.403—of the ORLTA. If you satisfy the elements listed therein, a 24-hour notice directed at the unauthorized possessor can get you on track to recover your property as quickly as the law allows.
Many individuals will cry “no-harm-no-foul” when it comes to the aforementioned situations.
However, landlords have the right, and an obligation—not only to the owners of the properties they manage, but also their other tenants—to know who is living within their properties. The outbreak of COVID-19 does not change these rights or obligations, and nothing in House Bill 4213 or any other eviction moratoriums prohibit taking action to address the above issues.
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