Mind Your Business – Tia’s Tips for Better Rental Management
By Tia Politi, Rental Owner, Lead Property Manager for Acorn Property Management
I received a call from a family member recently who wanted to see what he could do about some “squatters” who were refusing to leave a property he was purchasing. The property has two mobile homes on it and while the owner has vacated the main dwelling, the people living in the hardship trailer have not. He is anxious to get going on removing that trailer and renovating the other. He wasn’t happy to hear that the people who have lived in the hardship for the past 15 years, and who have exchanged their labor and payment of the annual property taxes for rent, were not squatters, but tenants. He said the realtor was headed over to serve a 30-day notice to vacate. I told him that due to the length of their tenancy, it needed to be a 60-day notice and that if they didn’t leave after the notice expired, the eviction process would take about two-and-a-half weeks past that. Not the news he wanted to hear.
In another case, a client wanted to hire me to evict his “squatters,” as his lawful tenant had moved out and left some people behind. He had spoken to the people who said the tenant had sublet the dwelling to them. They paid my client a portion of the rent, which he accepted. He then provided them with rental applications. Despite the fact that the rental agreement prohibited subletting, it was pretty clear that’s what the original tenant had done. So, are these people squatters?
ORS 90 defines a tenant as, “…a person, including a roomer, entitled under a rental agreement to occupy a dwelling unit to the exclusion of others…”, and a squatter as, “…a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit (emphasis mine)…(and)…does not include a tenant who holds over (refuses to leave at the termination of a rental agreement).”
In the case of the unauthorized sub-letters above, they may be able to prove to a judge they had been authorized by the tenant, making it risky to categorize them as squatters under the law. And because my client accepted rent from them and provided them with rental applications, his actions could be construed as acceptance of a tenancy. It is also an important distinction to note that when your tenant doesn’t leave after the termination of the tenancy, they do not become a squatter, but remain a tenant – albeit one who is illegally “holding over.”
What is a true squatter? Someone who breaks into a vacant home and takes up residency; a registered Temporary Occupant, whose right to remain on the premises has been revoked by a 24-hour notice from the landlord for cause, or the tenant for no-cause; and invited guests (including non-resident family members) who will not leave the premises after being asked to do so.
A tenant once came to me to ask for my help getting his brother-in-law out of his rental. He and his wife had let him sleep on the couch for a few weeks after he lost his apartment, but then he started stealing money from his sister’s purse and smoking pot in front of their toddler. The brother-in-law then refused to leave when asked. The tenant had called the police to see if they would help, but they told him it was a civil matter. I told him he could try changing the locks the next time the brother-in-law left and arrange for him to pick up his stuff, or I could help him legally evict his brother-in-law, but he would have to pay for it. He didn’t want to instigate a physical confrontation or take him to court. Instead he concocted a ruse where he pretended we had served a 30-day notice to vacate and started packing as though they were going to move. The brother-in-law fell for it and finally left. If that hadn’t worked, the only other option would have been an eviction.
My suggestion to lock him out was risky, of course, but if you have the guts to confront the situation and take decisive action, you can sometimes get squatters out without legal action or cowardly ruses. I had a tenant recently who was sharing his rental with a co-tenant. The co-tenant’s PTSD acted up and he started behaving in a bizarre fashion, disturbing the peaceful enjoyment of the neighbors, hanging out with homeless “friends,” and inviting them to their shared home. Eventually, his behavior got so bad that his family was able to have him placed on a 72-hour psychiatric hold. But by then, three of the homeless people had taken up residence in the garage and refused to leave.
The tenant called me in a panic as he had to leave for work and didn’t want to leave these people in the house unsupervised. I had also been receiving irate calls from the neighbors about the situation. The police had been called to the home on three separate occasions from neighbor complaints and one of the people the officers encountered had been evicted from a flop house and was, “very bad news” according to the Eugene Police Department. So, before heading over to the property I called 911. I arrived before the police, but the neighbors were out and about and we discussed what had been going on. They were angry and upset, but very supportive and said they would back me up.
The tenant let me in, I confronted the people (with the neighbors right behind me) and told them to pack their stuff and get out now, that the police were on their way. The two males were non-confrontational, but the female kept arguing and saying that they were sub-letters. I told them they were not, as the rental agreement prohibited subleasing. I opened the garage door allowing the light of day to penetrate their cozy garage home, and just hung out with the neighbors until the police arrived. When they did, I announced that the police had arrived and they had better hurry up and leave. I went to talk with the officers and let them know what was going on. One of the officers told me, “You know if they won’t leave, there’s nothing we can do, right?” I told him I was aware of that, but it appeared they were leaving and that I would appreciate it if they could stay for a few minutes and make their presence known. Pretty quickly after that the squatters finished packing their shopping carts and rolled away.
That was a risky move on my part, but I felt obligated to protect my owner’s home and my tenant. The risk in a situation like that is not only personal danger, but the risk of being sued afterwards for wrongful eviction. I determined that in this specific situation, the chances of that were slim to none, but don’t think that this approach will work in all situations. Calculated risks are just that, so I’m not advising you to take this kind of action. My tenant and I are both lucky that it worked out; it just as easily could have failed and we could have been assaulted or been forced to back off and go to court.
Why wouldn’t the police have helped us if they wouldn’t leave? To them it is a civil matter. How are they to know who is authorized to be on the property and who isn’t? That’s why it is important to make sure your tenants know they should have any guests register as guests, or longer term guests as temporary occupants, so that if there is a conflict, they have documentation of the person’s status under the law.
Also, watch out for creating “Squatter Waiver.” Permitting a non-tenant to openly and notoriously reside in your rental for three separate rental periods or longer, will turn a squatter into a tenant. You must act to protect your interests. If you suspect an unauthorized occupant (a squatter, by law) has taken up residence, send either a 24-hour Notice for an Unauthorized Occupant (if you don’t want the squatter to stay), or a Notice of Termination with Cause (if you’re willing to consider a tenancy), instructing the squatter to apply for consideration to become a lawful resident, or vacate the dwelling unit. If the notice expires without appropriate action, go to court.
To legally evict a true squatter, you must first serve a 24-hour Notice for an Unauthorized Occupant (subject to service of notice requirements). Once that notice has expired and your squatter hasn’t left, you go to eviction court, and to a Sheriff lock-out, if necessary. You can try this notice on people who claim they are in the property with the tenant’s permission, but if they challenge you in court and can convince a judge by a preponderance of the evidence that they are in the property by the authorization of the lawful tenant, you may lose, have to start over again, and accord them status as tenants.
Having squatters in your rental property or having your tenant illegally sublet is a very aggravating situation, but remember, the law has stiff civil penalties for constructive eviction of a tenant. You can’t turn off the utilities or physically force a person out without taking a chance on being sued for damages. You can’t even threaten to do it. If you are in this kind of situation and aren’t sure which way to go, keep calm and seek the advice of an attorney or an eviction specialist.
This column offers general suggestions only and is no substitute for professional legal assistance. Consult an attorney for advice related to your specific situation.