Metro Apartment Manager, December 2005

Q: We are site managers and I’m asking about a tenant I’ll call Lisa. When I knocked to serve a 72-hour notice the eighth of last month, some fellow I didn’t recognize opened the door. I asked if Lisa was there. He said, “Who are you?” I said I was the manager. He said, “Lisa’s mostly moved out. I’m Jason. She said if I paid the rent, I could stay. How much is the rent?” I told him how much and gave him the notice to give to Lisa. But I said he’d have to move too; if he didn’t, I’d call the police. But I probably can’t do that, can I?

A: The police deal with crimes. Call them when someone has broken the law or is about to. That’s not the case here. Jason has been invited in, so hasn’t broken any law that we know of. So don’t call the cops.

Landlord tenant law distinguishes between a squatter and a holdover tenant. A squatter is defined 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.” Jason sounds like he was invited in by Lisa, your tenant, so he is not a squatter. Neither authorized nor invited means to me breaking in. If Jason had moved into your empty apartment, then he would be a squatter. A squatter is not protected by landlord tenant law. A squatter is committing the crime of trespass, so if you find a squatter in possession, you can call the police. You can also change the locks and lock a squatter out.

A holdover tenant — that’s my term, not one in the statute — is someone who is invited in by your tenant and who stays on after your tenant moves out. Jason isn’t breaking any law: he didn’t trespass or break in. He was invited in. Lisa may be in violation of her lease agreement with you, but that doesn’t make Jason a criminal. Oregon law provides a method for removing such an individual, but it’s not as simple as calling the police. A section of law says (or will say after January 1; the wording changes slightly) that if an unauthorized person is in possession, you can give that person a 24-hour notice if [1] your tenant has moved out, [2] the lease prohibits subleasing, and [3] you haven’t knowingly accepted rent from the person.

Until you’re certain Lisa has moved out, you can’t utilize this section of law, so at some point you should go back and find out. You should also go back to talk to Jason. Who knows? It’s just possible you’ll rent to him. I suggest explaining to him that you screen people before you agree to rent to them and if he’d fill out an application you’d see if that could happen. You could be lucky, ending up with a satisfactory new tenant without advertising or lost rent. But even if it doesn’t work out that way, at least you’ll know whom you’re dealing with. It will be much easier to serve that 24-hour notice with an actual name on it. And if you’re unfortunate enough to have to go to court and evict on that notice, it’s easier to get through that process knowing the name of the person.

We should consider the notice you’ve already served, your 72-hour notice. In some states this is referred to as a pay-or-quit notice. That term is appropriate because the notice says, pay your rent in the next 72 hours or your tenancy is terminated. Unvoiced is that if the tenancy is terminated, you’re no longer allowed to live there and so you should move out — the quit part. But for a notice to be effective, it must be properly delivered. Hand delivery means handing it to your tenant. Jason is not your tenant — or not yet, anyway — so handing it to him didn’t constitute delivery as required by law; therefore, the notice is void.

If Lisa pays you, the tenancy continues. But if she doesn’t pay you, you’re sort of in limbo. You need to return to determine if she’s still living there. Jason’s “she’s mostly moved out” doesn’t resolve that. If she tells you she’s out, that’s fine. I don’t think you can rely on Jason’s say-so. Even if you go over and determine she’s entirely moved out, that’s not enough to reclaim possession or to feel free to deal with Jason on your own. The tenancy has to end somehow. In this case, the quickest way to do that is with another 72-hour notice. If your lease has post-and-mail language, you could go talk to Jason again and at the same time post one 72-hour notice and mail another. If you terminate the tenancy (the 72-hour notice) and you reasonably believe the tenant has moved out, then you can reclaim possession of the property — or at least you can after dealing with Jason.

So on your trip over there, give Jason an application, ask to verify that Lisa has moved out, ask for her forwarding address, and post a 72-hour notice. You were right not to take rent from Jason. If you do, you lose your right to terminate with a 24-hour notice. If Jason is going to be uncooperative about Lisa (not giving you a forwarding address, not letting you determine whether or not she’s fully out), you could give him the 24-hour notice.

If you then have to go to court, I would file an eviction in both names and attach both notices. That way, you’re reclaiming possession from her if she still has a possession claim — she hasn’t moved out entirely — and from him — if he’s the one now in possession after she’s gone. While evictions based on two separate notices are unusual, they are not prohibited.

My usual reminder: each circumstance is unique, so your case will be different. Before you act, be certain about what you do. Don’t rely solely on this general advice; read the law and consult others as appropriate.

This entry was posted on Saturday, December 31st, 2005 at 2:48 pm and is filed under delivery of notices, 72-hour notice, squatter, holdover tenant. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.