Unwanted Occupants – a Trap for the Unsuspecting Fiduciary

Dad Died & I Need To Evict or Eject His Adult Child

Personal Representatives, Trustees and Conservators hold positions of tremendous responsibility. Frequently these fiduciaries are faced with challenges caused or exacerbated by relatives, or even acquaintances, of the protected person, decedent, or primary beneficiary. One challenge that frequently arises is when the fiduciary needs to sell a primary residence to generate liquid funds for the Estate or Trust and a family member or acquaintance tenant or other occupant is residing in the residence. Some buyers are willing to purchase a home occupied by a tenant, but such willingness dissipates rapidly when the tenant or occupant is not paying rent.

Under the best circumstances, a month-to-month lease will be in place and the tenant will be paying rent on time. This is the traditional landlord-tenant relationship. In this situation, provided the fiduciary does not want to market the property with the tenant in residence, the fiduciary can issue a 30- or 60-day no-cause termination notice (different notice provisions apply in the city of Portland). If the tenant does not willingly move out prior to the expiration of the notice, it may be necessary for the fiduciary to file a Forcible Entry and Detainer lawsuit (otherwise known as an “FED” or “eviction” lawsuit). These residential evictions are fast-tracked by the court. In Multnomah County, the fiduciary’s first court day in an eviction trial is generally 8 days after the lawsuit is filed (as opposed to several months in a typical civil case). During this first court appearance, provided both the fiduciary and the tenant show up, the judge strongly encourages the parties to come to an agreement and avoid a trial. In this scenario, this may mean that the tenant gets an additional two weeks to move out. If no agreement is reached, then a trial is scheduled.

Under Oregon law, the trial is to take place no later than 15 days after the first court appearance. If the fiduciary prevails at trial, the tenant will need to move out within a few days, or the sheriff will forcibly remove the tenant. Tenant will also owe the Estate or Trust the fiduciary’s reasonable attorney’s fees. These fees can be surprisingly high. A relatively straightforward residential eviction lawsuit, through trial, can cost upwards of $5,000 – although I have personally had two particularly challenging evictions, once as the landlord’s attorney and once as the tenant’s attorney, where the prevailing party attorney fees and costs exceeded $30,000.

A word of caution, Oregon landlord-tenant law is very tenant friendly and highly technical. Many a wary landlord finds himself running afoul of the law. If the landlord has not dotted all his “i”s and crossed all his “t”s, he or she may find themselves as the losing party and owing thousands of dollars to the lawyer of the tenant they were trying to evict.

As daunting as the FED process above sounds, removing an occupant who never established a tenancy, may be even costlier and more time consuming. Numerous Oregon cases have found that family members were not tenants, due to the specific circumstances under which the family members came to live in the house. In some of these cases, it was necessary to file an ejectment lawsuit. Ejectment lawsuits are heard on the regular civil court docket. This means that it may be several months before the case goes to trial and likely tens of thousands of dollars will be spent in motion practice and preparing for trial.

If you find yourself as a fiduciary (or attorney for a fiduciary) needing to remove a family member or acquaintance from estate or trust property, please consult with me or another experienced landlord attorney before you take any action. Please also contact me if you find yourself in any other real estate disputes or are seeking counsel in advance to avoid finding yourself falling into a trap.

Denise represents clients on real estate disputes, business dissolutions, and trust contests. She also helps hospitality and wine industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations. Please contact Denise directly at denise.gorrell@samuelslaw.com.

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