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FamilyAttorney, Lawyer
Category: Real Estate Law
Satisfied Customers: 1354
Experience:  Owner, attorney in private practice, appellate attorney, GAL & former trial lawyer, licensed for 37 years
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We need to sell the house that my husband lived in

Customer Question

We need to sell the house that my husband lived in previously. One of his adult children is currently living in the house. She has lived there for the last 2.5 years without paying any rent or utilities; there has never been any kind of lease or rental agreement. My husband, Ernie, has told his daughter, Erin, repeatedly that she was going to have to move, as he needed to sell the house for financial reasons. However, Erin has made no apparent effort to find someplace else to live.
Having reviewed the online information that we could find, we have discovered that various states and cities have widely different laws pertaining to eviction of a family member where no lease or agreement is in place, and no rent has been paid. We understand that the law often requires a different process or amount of notice, depending on whether the person occupying the house qualifies as a tenant or a licensee.
We now have an opportunity to sell the house in the very near future, and we would like very much to be able to pursue this opportunity. However, as much as we hope to facilitate this process, we want to ensure that we do everything as quickly as possible, but also according to the local laws.
Will you please advise us as to the laws in Portland, Oregon that pertain to this situation? Specifically, we need to know how much notice is required, what format is required in giving that notice, and what additional steps would be required if she doesn't comply. For example, in that scenario, will we have to go to court to get her out of the house, or will we be able to simply call the police to have her removed?
Thank you very much, in advance, for all of the information you are able to provide. Sincerely,
Nancy & Ernie
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  FamilyAttorney replied 1 year ago.

Hello. I’m a licensed attorney with 36 years’ experience. I specialize in family law and appeals, and I have many years’ experience with landlord-tenant issues, employment and contract law. I also have written hundreds of legal articles. I look forward to helping you today.

Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an attorney on this site.

At the end of this session, I will ask you to please rate me as that’s the only way I get credit for helping you today. Thanks! Please note: I want to help you but I may need some additional information from you. Are you okay with rating me? I would really appreciate it!

Also – I will be typing my answer for you so I’ll be back asap.

Re: Portland, there are so many different times that are given for eviction -- 30 days for a month-to-month, but 60 days in Portland and then in the end, it needs to really be a 90 day notice for No-cause. A no-cause eviction doesn't have to state the cause but has to state when the tenancy is going to end. The notice has to be done properly and served properly, adding at least three days for mail.

You then have to take her to court if she does not vacate by the end of 93 days, so you are well-advised to see a landlord-tenant attorney about this. The requirements are strict. You must actually post the notice on the tenant's property and mail it by first class mail. Also, Oregon requires notices to be mailed via first class mail. Registered Mail is not sufficient. Personal service or delivery is OK and is the BEST way to serve a notice. MANY evictions are dismissed based on a failure to serve a notice correctly. This is why it's a good idea to have a landlord-tenant attorney do this for you. Yes, you have to bring it into court if she fails to vacate.

You must file the eviction proceeding immediately after the notice period if the tenant is still in possession. This is required to allow the sheriff to remove the tenant. The proceeding is quick, with the "first appearance" scheduled days after the filing. If the tenants do not appear, you are awarded possession immediately and a writ of execution, plus a judgment of costs at that time. If the tenant appears and challenges the eviction, a court date must be set to occur within 10 days.

If any mistakes are made along the way, the process has to be redone. I'd strongly advise getting a landlord-tenant attorney and I can find some in your area if you'd like. Just let me know.

Does this answer your question? I am more than happy to answer additional questions based on this one if you want.

I hope this helps and clarifies. If you could, I'd appreciate it if you can rate me when finished. If you need additional information please let me know. Best of luck to you!

Please accept my answer, rate my answer as one of the top three faces/stars and then submit, as this is how I get credit for my time with you and with your question. I work hard to give you a thorough and honest answer. I thank you in advance for rating me. Please let me know if there is more that I can do to answer your question and if you need more information. If not, I thank you for your rating. I can’t get credit for answering your question without your fair and honest rating. Thank you, ***** ***** you for allowing me to help you today.

Kindly rate positively so I receive credit for assisting you.

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Expert:  FamilyAttorney replied 1 year ago.

Just to reiterate, you cannot just call the police to have her out. You will have to go through the entire landlord-tenant procedure of going to court if she does not comply. Evictions happen in families and in roommate scenarios too, but there is a due process requirement for everyone. They have to be served with notice, and they have to have their day in court if they don't comply. They have to be properly served and they have to have the right notice, the right time for the notice, and the right service of notice. This gets complicated, which is why I'm suggesting that you have a landlord-tenant attorney do this for you. In the long run, you'll be happy you did so that it's done properly and doesn't have to start all over again. The faster she is out the faster you can sell your house. Good luck to you!

Customer: replied 1 year ago.
Thank you for your response. We feel the need to follow up with another question, as the specific sub-questions we asked weren't addressed.For example, we had read some information about the required process being different if the person living in the house is considered a tenant versus a licensee, but we couldn't find any information about what factors were involved in making one designation or the other. Hence our request that you address that specific question with as much detail as possible.I believe the other matter we asked you to address in detail had to do with the fact that there was never any kind of rental agreement or lease in place; likewise, she never paid any rent or utility payments. Given the lack of any payments or any documentation giving her a right to occupy the house, does this make her a guest rather than a tenant? If she is a guest, does that change the time or process required?We will look forward to receiving your more detailed response. Thank you.
Expert:  FamilyAttorney replied 1 year ago.


I'm happy to provide you with more clarification. I want to make sure you're happy and I want you to know that I will work to ensure that.

Re: Whether she has a lease or not, paid or not, she will be considered a tenant and not a guest. Nothing changes the fact that she has to be evicted. Once someone comes into the premises to live, as a roommate, as a tenant, as a guest or whatever the designation is, they're tenants for the purpose of getting them out. The procedure is the same -- a 90 day notice in Portland for no-cause evictions, and add 3 days for mailing. If she doesn't leave after that time, you cannot call the police. You must go through the court system. She is entitled to due process, which is notice and the opportunity to be heard. That's built into the US Constitution and into every state's constitution.

She is a tenant and not a licensee.

A tenancy has the legal effect of passing an interest in land from the landlord to the tenant. It means that the tenant is given the right of occupation. If a landlord is in breach of a tenancy document, then the tenant can claim damages (compensation) against the landlord and continue to occupy the property in question.

In contrast, a license creates no interest in land. The licensor only allows the licensee to use the land, not to occupy it. The licensee’s remedy against the licensor’s breach of the license may lie only in claiming damages, but not in occupation of the property. Therefore, a license is typically used for short-term occupation (e.g. for several weeks or months) or where the licensee does not have exclusive occupation of the property, e.g. a car parking space , a newsstand or a “kiosk” in a shopping mall .

Expert:  FamilyAttorney replied 1 year ago.

I opted out by mistake and I apologize. I wanted to make sure I had answered this for you but somehow the window had closed.

I included definitions of licensees, which do not apply here. That's when someone has the right to access the land or building, like a plumber, but doesn't have any interest in the land such as a tenant would.

Please let me know if I've answered your questions. She has to be evicted, plain and simple, and whether she has paid rent or not is immaterial. She has been allowed to live there rent-free for several years and now she won't leave. That is called holding over. You are entitled to evict her pursuant to the process I outlined above. Portland has its own time mechanisms for notice, different from the rest of the state, as you already noticed. She has to be given the proper notice or you will have to start all over again.

I strongly suggest that you have a landlord-tenant attorney do this for you so that it's done properly. I'm sure you'd be able to do some parts of this fine, but a landlord-tenant attorney will be able to take care of this for you from start to finish.

If you want me to send you a list of L&T attorneys in Portland, Oregon, please let me know and I'll be happy to do that. I'll keep answering until you are satisfied with my answer but this is as detailed as it needs to be. She is not a licensee, and even if you want to call her a guest, she is in theory a tenant and has to be evicted as such.

It doesn't matter whether she paid $1 in rent or $0. She is a tenant for purposes of eviction because she will not leave so she is what is called holding over. You have several reasons to evict her -- for failing to pay rent unless that was allowed, and for failing to leave when requested. She is entitled to due process, is not a licensee of any kind, and must be properly evicted under the laws of the State of Oregon.

Please let me know if I can answer anymore questions or if you need me to find landlord-tenant attorneys for you which I am still willing to do free of charge. This is a service I provide to my many satisfied customers here. My satisfaction rate here is 100%, I have practiced law for 36 years, I am well informed about landlord-tenant law, and I have written hundreds of legal articles on landlord-tenant issues and on other topics, including for my own column on LegalZoom, although LZ is not for my landlord-tenant articles. I strive for complete satisfaction and would be happy for you to rate me but not until I have satisfied every part of your question.

Thank you in advance for your fair rating. I cannot get credit without it. If you need more information, please withhold rating me and I will provide additional information.

I wish I had a more favorable answer for you, but this is the state of the law. I'm just the messenger. Thank you! Best of luck to you. I would also try to reason with her and see if she will move out on her own. It works many times, bypassing the need for all of the above Landlord-tenant procedure.

Customer: replied 1 year ago.
Thank you for the additional clarification. We would very much appreciate having you send us a list of good landlord-tenant attorneys in the Portland area. If you can recommend a landlord-tenant attorney whose office is in the Beaverton area, that would be even better, as it would make it easier to get to appointments. (In asking about a recommendation for an attorney whose office is outside of Portland but in the Portland metropolitan area, I am assuming that any attorney licensed in Oregon can represent us, regardless of where their office is located. Is that correct?)I also have two other general questions relating to hiring a landlord-tenant attorney to help us address this situation. First, will the attorney be present with us in the court phase of the process, in addition to handling the notice phase properly? Also, can you please give us some kind of estimate, or possible range of prices, that would be reasonable to pay an attorney to assist us with an eviction process, in our area? I realize you may not know specific figures, but even a rough estimate would be extremely helpful.Thank you, ***** ***** for your assistance. And yes, as soon as we have all of the general information we need, we will be happy to rate you, as requested. In the meantime, I hope your day is going well. :)
Expert:  FamilyAttorney replied 1 year ago.


Yes, any landlord-tenant attorney in the state can represent you. I'll see who is in Beaverton and send you a list of those attorneys and those in Portland. Then I'll send you a list of what to look for and what to avoid because we can't choose lawyers for you but I can point you in the right direction. Make sure the attorney represents landlords because you're the landlord here. Not all of them do, so you have to ask. Also ask for a free consultation over the phone -- you never know, sometimes they will do that for you.

Here's what to look for and what to avoid.

Avoid: Any attorney with a red mark next to the attorney's name, such as misconduct. That usually means the lawyer was either disbarred, censured, cited for misconduct, or suspended from the practice of law.

Ignore: Ratings, such as 6.5 or 10, which is the highest. A 6.5 attorney may be even better than a 10. It's difficult to say. The site has its own formula for rating attorneys and many attorneys get a 10 because they belong to bar associations and sometimes give lectures. That does not necessarily mean they're the best when it comes to going to court.

What to look for: See what the clients’ reviews state, especially in the field that you're interested in (i.e. wills, custody, annulment, landlord-tenant, guardianship, etc.). That is probably going to be the most important thing. Many people have not been rated, but if there are a bunch of them who are, go with the ones who have multiple ratings and that are outstanding.

I would also suggest you find someone who has been practicing at least 10 years, the more the better. The site will tell you how long they're practicing law. You don't want someone just a few years out of law school to take on your case.

Hope this helps and best of luck. If you can try to convince her to move, you will save all of this aggravation and court procedure, so I would recommend trying one last time to reason with her. A court procedure is not going to help the family harmony but of course, she isn't helping matters and is forcing you to take this action. Be well!

Expert:  FamilyAttorney replied 1 year ago.

Hi, just checking in to see if you still need help with your question and if my answer was helpful for you. Thanks and thank you for allowing me to help you.