Phil Querin Q&A: Tree Limb Falls On A Residents House

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Phil Querin

Question: A tree limb fell through a resident's roof. I told him what I believed the recently enacted state law was, but don't know if I was thorough enough. Under the old law, tree maintenance was the tenants' responsibility -- period; regardless of whether the landlord or tenant planted and regardless of size. The resident says I should make the space safe. I told him to take it up with the City of Portland as I wanted to take the tree out when I first developed the property and they said I had to keep the tree. I told the resident hat my policy had been to split the tree removal cost with the resident and he agreed. What are my rights here?

Answer. Many manufactured housing communities in Oregon have large trees. While Oregon law has imposed the duty of general tree maintenance on the residents, there is little question but that most do not have the expertise, skill or financial means to provide the type of maintenance that may be required for large older trees. With this in mind, the MHCO encouraged the Landlord-Tenant Coalition to craft a bill that fairly and clearly allocated the responsibility for tree maintenance in a realistic manner. Landlords are in a better position than residents to obtain and afford good liability insurance, since it is a standard cost of doing business. Moreover, there was concern that under the existing law, some park owners might not regard the issue of tree maintenance as their problem. In reality, however, it is. Injury or death resulting from falling limb or tree that should have been trimmed or removed is surely going to result in potential liability to the park owner. Accordingly, the statute allocates the risk in a more realistic and practical manner: Normal maintenance for trees on a resident's space remains with the resident. However, if the tree has certain features that make it a "hazard tree" then responsibility shifts to the landlord - unless the resident planted the tree. This delineation should help both landlords and residents understand their respective responsibilities. Here is a summary of the current 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. 2. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act. 3. 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. 5. 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. 6. 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. 7. 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. 8. Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510] Conclusion. It sounds as if your solution was a good one and everyone was satisfied with the outcome. Your question did not specify whether the tree was a "hazard tree." If it was, then my question to you would have been: Did you develop a tree policy for your park? By the fact that you're asking this question, I assume you have none. Even if you did, it would be hard to apply it retroactively. With the recent snow storms of February, perhaps community owners will become more mindful of these issues. The first order of business is to take a survey of the hazard trees, and then develop a program for safety maintenance. Lastly, of course, park owners should always have a good policy of liability insurance for $1,000,000 or more that covers this type of situation. Fortunately, no one was injured in your situation, but if so, the solution might not have been so easy.

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