Phil Querin Q&A: Tree Damaging Home and Property - Solution May Create a Hazard Tree

Answer: Here is a quick primer on ORS 90.727, the hazard tree statute, which was enacted in the 2013 Legislative Session:

Oregon Law.

1. Definitions.

• "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

• "Hazard tree" means a tree that:
  • Is located on a rented space in a manufactured dwelling park;
  • Measures at least eight inches DBH; and
  • Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.

1. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act.

1. Resident Duties re Trees Located on Space. A resident shall maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees.

• "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.
• "Removing a tree" includes:
  • Felling and removing the tree; and
  • Grinding or removing the stump of the tree.

4. Landlord Duties re Hazard Trees.

• Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree;
• Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree;
  • Must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves.
• Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming.
• Landlord is not responsible for:
  • Maintaining a tree that is not a hazard tree; or
  • Maintaining any tree for aesthetic purposes.
• A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ]
• Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense.
  • The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense;
  • If the arborist determines that the tree is a hazard, the resident may:
    • Require the landlord to maintain the tree as a hazard tree; or
    • Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report.

1. Tree Obstructing Removal of Home From Space. If a manufactured home cannot be removed from a space without first removing or trimming a tree on the space, the owner of the home may remove or trim the tree at the owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the home.

1. Use of Landscape Professional. The landlord or resident that is responsible for maintaining a tree must engage a landscape construction professional with a valid landscape license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more.

1. Access to Resident's Space [ORS 90.725].

• An "emergency" includes but is not limited to:
  • A repair problem that, unless remedied immediately, is likely to cause serious physical harm or damage to individuals or property;
  • The presence of a hazard tree on a rented space in a manufactured dwelling park.
• An "unreasonable time" refers to a time of day, day of the week or particular time that conflicts with the resident's reasonable and specific plans to use the space.
• "Yard maintenance, equipment servicing or grounds keeping" includes, but is not limited to, servicing individual septic tank systems or water pumps, weeding, mowing grass and pruning trees and shrubs.
• A landlord or a landlord's agent may enter onto a rented space to:
  • Inspect or maintain trees;
  • A landlord or the landlord's agent may enter a rented space solely to inspect a tree despite a denial of consent by the resident if the landlord or the landlord's agent has given at least 24 hours' actual notice of the intent to enter to inspect the tree and the entry occurs at a reasonable time.
  • If a landlord has a report from an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture that a tree on the rented space is a hazard tree that must be maintained by the landlord under this Act, the landlord is not liable for any damage or injury as a result of the hazard tree if the landlord is unable to gain entry after making a good faith effort to do so.
• If the resident refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in accordance with the Oregon eviction statutes. In addition, the landlord may recover actual damages.

1. Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510]

Discussion. It is not clear to me whether your arborist knows what a "hazard tree" is under ORS 90. 727. Cutting the roots may make the tree more dangerous, but under the statutory definition, to be a "hazard tree" it must measure at least eight inches in diameter at breast height ("DBH")[1]. If it does, then you have the primary responsibility. If it does not then your rules would appear to apply.

However, even though the tree is not of sufficient size to be a hazard tree under the statute, I think the discussion merits a closer look. Assuming it was in existence at the time the resident rented the space, what the rule seems to say is that even though the landlord owns the ground and the tree, it becomes the tenant's responsibility once leased. As to small trees and normal vegetation, I can understand this rule. But the larger the tree, the more the argument becomes one of "cost shifting" i.e. requiring a resident to undertake possibly expensive measures (e.g. removing the tree) for the benefit of the landlord's property. This issue, in fact, was the rationale behind the hazard tree legislation.

Oregon law provides that park landlord have certain habitability obligations to residents. ORS 90.730(3)(g) provides:

Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord's duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; (Italics mine.)

Although the statute does not refer to driveways and other amenities on the space, it does refer to the "dwelling", which includes the skirting. Does the tree root make it "unsafe". Probably not, if safety refers just to personal safety and not safety of the property.

However, ORS 90.135 (Unconscionability) provides that a resident may argue that shifting the responsibility for maintenance of landlord-owned property - in this case - a non-hazard tree not planted by the resident that is causing damage to residents' property, is "unconscionable". The statute provides:

If the court, as a matter of law, finds: (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; ***

Conclusion. I am not saying management is, per se' responsible. But what I am saying is that this is a risk that is better shouldered by a landlord, than a tenant, especially here, where the tree existed before the tenancy, and it ultimately belongs to the landlord.

Note, this may be an insurance issue. Can the residents file a claim with their carriers for the tree damage? This depends on their coverage. In the final analysis, the tree should be removed, since it will continue to damage the tenants' property. At some point they could file a claim against you for the cost of that damage. Why not remove the tree now and avoid any further issues?

[1] Technically, it is measured at four and one-half feet above the ground on the uphill side.