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Background

Emergency Period. The Covid-19 pandemic hit Oregon in Spring, 2020; Governor Brown declared a State of Emergency and a temporary ban on evictions (FEDs) in March, 2020. The Oregon legislature then extended the eviction moratorium by enacting a series of bills, beginning with HB 4213 in June 2020 and ending with SB 282 in May of 2021.[1]

Collectively, the legislative bills created an “Emergency Period” where landlords were prohibited from terminating tenancies or evicting tenants for non-payment of rents, charges, and fees. The Emergency Period lasted from April 1, 2020 to June 30, 2021. All unpaid rents charges and fees from the Emergency Period are known as “nonpayment debt.” All tenants were required to pay their current rent beginning July 1, 2021.

Grace Period: Along with the Emergency Period, the Oregon Legislature also defined a “Grace Period,“ which was a time during which Landlords were prohibited from terminating or evicting a tenant based on the outstanding non-payment debt remaining from the Emergency Period. Tenants had from June 30, 2021 to February 28, 2022 to pay off their nonpayment debt.

Safe Harbor Period. In June and December 2021, the legislature passed SB 278 and SB 891. Together the bills provided for what is called a “Safe Harbor” for tenants who were still having difficulty paying their rent. The bill prevents Landlords from terminating tenancies or evicting tenants who are seeking rental assistance. The rental assistance programs established by Oregon can provide up to 12-month of back-rent and three months of prospective rent to tenants who qualify. The Oregon rental assistance program will close to applications on March 14, 2022. Landlords are prohibited from terminating or evicting for non-payment until they either receive notice that the tenant’s application has been denied, or June 30, 2022, whichever comes first.[2]

What Now?

Continuing Safe Harbor. While there are a number of actions that a landlord may now take to address nonpayment debt owed by tenants, they are still protected from eviction if they have applied for rental assistance. 

• If a landlord receives written proof of application for rental assistance, they may not:
  • Issue a termination notice for nonpayment; or 
  • Initiate/continue an FED action based on nonpayment. This prohibition lasts until the landlord receives notice that the application is no longer pending.
• The last day a landlord may receive notice of an application for rental assistance is June 30, 2022. 
• All Safe Harbor protections expire on October 1, 2022. 
• The Oregon Emergency Rental Assistance Program will close on March 14, 2022 at 11:59 pm. [It is uncertain if there will be additional funds offered after this date.]

Nonpayment of Rent Terminations. Termination notices for nonpayment of rents, charges, and fees accrued during the Emergency Period (April 1, 2020 to June 30, 2022) are now permitted. Landlords must still use the 10-day or 13-day nonpayment notice until October 1, 2022.[3] If the rental unit is a park-owned home, the landlord may also use a 30-day for-cause termination notice under ORS 90.392.

Termination notices no longer need to include language stating: “eviction for nonpayment of rent, charges and fees that accrued on and after April 1, 2020, and before June 30, 2021, is not allowed before February 28, 2022;” and “Information regarding tenant resources is available at www.211info.org.”

Note: Landlords must still send the Notice of Protection Against Eviction for Nonpayment form with any notice requiring payment of money to the landlord (e.g.,. notice of termination for nonpayment, and summons for a nonpayment eviction complaint). (See, MHCO Form 111)

Notices to Tenant – Balance Due. Notices to tenants regarding outstanding debt due are no longer required to state that “eviction for nonpayment of rent, charges and fees accrued from April 1, 2020 to June 30, 2021, is not allowed before February 28, 2022.”

Collection of Nonpayment Debts. Landlords may now file a civil action in court to recover the nonpayment balance accrued during the Emergency Period (April 1, 2020 to June 30, 2022). Debts may also be sent to collection agencies. [Note: Landlords are prohibited from reporting any Emergency Period debt (April 1, 2020 to July 1, 2021) to a consumer credit reporting agency.]

Application of Payments. The eviction moratorium bills temporarily changed the order in which landlords apply tenant payments. As of March 1, 2022 payments must be applied as outlined in ORS 90.220(9), unless otherwise altered by the rental agreement. The order of payments is: 

• First – outstanding rent from prior periods;

• Second – current rents; 
• Third – utility/service charges; 
• Fourth – late fees; and
• Fifth – all other fees/charges owed under the rental agreement.

Nontenant Guests. Landlords may once again enforce restrictions on nontenant guests, including assessing fees or terminating a tenancy for violations. [Note: removal of any nontenant guests who had entered into a Temporary Occupancy Agreement with the landlord is subject to the terms and expiration of that agreement.]

Statute of Limitations. Section 7 of Oregon House Bill 4212 enacted certain Covid-related tolling (i.e., “suspension”) provisions for nonpayment of rent claims under ORS 12.125 (Actions arising under rental agreement). March 1, 2022 marked the end of the tolling period. Landlords now have one year (i.e., to March 1, 2023) to recover outstanding nonpayment debt accruing during the Emergency Period.[4]

The tolling of the statute of limitations under the Eviction Moratorium bills only applies to debt generated duringthe Emergency Period. The language of the legislations specifically designates that it applies to “claims by a landlord based on a tenant’s nonpayment or nonpayment balance.” 

“Nonpayment” is a defined term in the legislation and specifically means “nonpayment of a payment that becomes due during the emergency period” and “nonpayment balance” refers to “all or a part of the net total amount of all items of nonpayment by a tenant during the emergency period.” (Italics added.)

Rents, charges or fees arising before April 1, 2020 and after July 1, 2021 do not appear to be protected by the tolling of the statute of limitations in the Eviction Moratorium Bills. However, landlords should check with their own  attorneys to verify whether the statute of limitations provisions enacted by HB 4212 may apply to actions accruing before or after the Emergency Period. 

Oregon’s State of Emergency is set to expire April 1, 2022, after which time there should be a 90-day window in which certain claims may be brought.[5]

Ongoing Tenant Screening Prohibitions. When screening prospective tenants, landlords are prohibited from considering FED actions and unpaid rents, charges and fees – including nonpayment of judgment debt and debt referred to a collection agency – that arose between April 1, 2020 and March 1, 2022. 

Tenants may also apply to have their FED judgments set aside and sealed for eviction actions arising between April 1, 2020 and March 1, 2022. These screening prohibitions and moratorium-related judgment set-asides will expire in 2028.

Landlords Receiving Federal Funding. If a landlord is receiving federal funds (affordable housing, federally backed mortgage, HUD) they must assure that they are complying with any rules set down by the proper federal agency, or other covid-related federal programs like the CARES Act. Commonly these rules require a 30-day nonpayment notice and additional federally-mandated disclosures. Check with your attorney to assure you’re in compliance with federal tenant protections, if applicable.

Partial Payments and Waivers. Acceptance of partial payments of rent during the Grace Period did not constitute waiver under the Eviction Moratorium legislation. However, that provision expired on March 1, 2022. While Oregon landlord-tenant law does address waiver (ORS 90.412 to 414) and the effect of partial acceptance of rent (ORS 90.417) it does not directly address situations created by the Covid pandemic. 

The current statutes are clear that acceptance of partial rent may, under certain circumstances, constitute a waiver of the right to terminate for nonpayment of rent. ORS 90.417(4) may provide some guidance. There are two ways to avoid acceptance as a waiver: 

• The landlord accepts partial payment before issuing a notice of termination for nonpayment because the tenant agreed to pay the balance by a set date. The tenant must then fail to pay the balance. If so, then the landlord’s notice of termination is served no earlier than if no rent had been accepted, AND the notice must provide that the tenant can cure by paying the balance by a time set by statute or by agreement of the parties; or

• The landlord accepts partial payment after issuing a notice of termination but enters into a written agreement with the tenant that acceptance does not constitute waiver. The agreement may also provide that the landlord may terminate and evict without further notice if the tenant does not pay the balance by the agreed-upon date.

Since the statutes do not specifically address situation created under the Eviction Moratorium, it is currently unclear how the courts will address the waiver issue. If the landlord is inclined to accept partial payment or create a payment plan, it is suggested that an express non-waiver provision be included. Landlords may also consider terminating for-cause. Landlords should consult with their own legal counsel before accepting past-due rent arising after the end of the Grace Period.

[1] The bills were as follows: HB 4213 (June 2020), HB 4401 (December 2020), SB 282 (May 2021).

[2] June 30, 2022 is the last day a tenant can provide proof of application for assistance. Protection under the Safe Harbor itself ends on September 30, 2022. 

[3] The 10 or 13-day notice will revert to a 72 or 144-hour notice on October 1, 2022 (SB 891, Section 8, (3))

[4] For a more detailed discussion of the effect of HB 4212’s tolling provisions, see: https://www.osbplf.org/blog/inpractice/covid-19-state-of-emergency-extended-through-december-31-2021/

[5] Section 7(1) of HB 4212 states: “If the expiration of the time to commence an action or give notice of a claim falls within the time in which any declaration of a state of emergency issued by the Governor related to COVID-19, and any extension of the declaration, is in effect, or within 90 days after the declaration and any extension is no longer in effect, the expiration of the time to commence the action or give notice of the claim is extended to a date 90 days after the declaration and any extension is no longer in effect.” (Emphasis added.) 

Answer.The question is an important one. It calls into play a balancing of two statutes, ORS 90.730and ORS 90.740. Rather than set them out verbatim, below, I will discuss below only those portions of the statutes that deal with the issues you have raised.[1]

Tenant Obligations (ORS 90.740)

First, note that these are those tenant duties imposed by the statute. The rental agreement could – though unlikely – could alter them. I say “unlikely” because elsewhere in Chapter 90 the law imposes liability on landlords that try to “shift” to tenants certain statutory duties imposed on landlords.[2]

The main requirements dealing with utility systems are as follows:

• First, if the home is being installed by the tenant (or more likely their contractors) it must be in compliance with applicable laws and the rentalagreement.
• Second, they must install and maintain storm water drains on the roof of the home and connect them to the drainage system (ifany).
• Third, they must use all electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to thosesystems.

Additionally, there are some collateral conduct obligations that could indirectly interfere with the operation of various park-wide systems, and thereby incur liability. They include:

• As an ongoing obligation, tenants must dispose ashes, garbage, rubbish and other waste in a clean, safe and legal manner. 
• They must keep the rented space in every part free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin as the condition of the rented space permits and to the extent that the tenant is responsible for causing the problem. 
• The tenant shall cooperate to a reasonable extent in assisting the landlord in any reasonable effort to remedy theproblem.
• They must keep the home and the space, safe fromthe hazards of fire. This includes installing and maintaining a smoke alarm approved under applicable law.
• They must refrain from deliberately or negligently destroying, defacing, damaging, impairing or removing any part of thefacility, other than the tenant’s own dwelling or home, or knowingly permit any person to doso

Comment: If an obligation belongs to the tenant, say, installation of the home itself, it continues from homeowner to homeowner. It is never a landlord liability issue. But as discussed below, since the stability of the ground is a landlord duty, the stability of the home could be affected by the ground and become a landlord liability. 

Landlord Obligations (ORS 90.730)

The landlord’s primary duty to residents is “habitability”. The statute provides that at to park-wide systems, a rented space is considered unhabitable if it substantially lacks:

• A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;
• If required by applicable law, a drainage system must be reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;
• A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;
• An electrical supply and connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;
• A natural gas or propane gas supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

As to duties that can indirectly affect park-wide systems and cause landlord liability, ORS 90.730further provides that:

• At the time of commencement of the rental agreement, buildings, grounds and appurtenances must be kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
• Excluding the normal settling of land, the park’s surface/ground must be 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; and

As to common areas, if systems are supplied or required to be supplied by the landlord, they are considered unhabitable if they substantially lack:

• A water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord.

Comment: The first point to note is that these landlord duties (a) commence at the time of installation, and (b) continue as maintenance obligations throughout the term of the tenancy. Generally, tenant responsibilities to the community and its systems are governed by usage. If the usage is reasonable and the system fails, generally liability  will fall on the landlord pursuant to ORS 90.730.  The only major exceptions relate to tenant-required duties, i.e. (a) installation/stability of the home and (b) installation of storm water drains on the roof and their connection to the drainage system. Generally, these are where the “lines of responsibility” begin and end.

Conclusion.So with regard to the (allegedly) collapsing sewer pipe, unless there is some evidence of tenant responsibility, it is likely a landlord maintenance issue under ORS 90.730.

As to discoloration in the tap water, the solution is to immediately get the water tested and find out if others in the community are experiencing the same issue. Testing will likely disclose the source of the problem and whether it is dangerous. In both instances, unless there is some evidence of tenant-related causes, it is a landlord problem (to the extent the water supply system can be controlled by the landlord) the remedy will likely be on your dime. But installation of an “expensive filtration system” was likely premature, and the result of a good sales pitch. Ask the tenant for copies of all tests run before the system was installed.

Answer: This sounds like an episode from a Jerry Springer reality show! Your question doesn'tmake it clear whether the estate was formally filed for probate in court, in which case this "Administrator" would be subject to court supervision and would have to have a bond. I'm suspecting that is not the case - but if it is, you may want to secure legal counsel to notify the court of what's happening and perhaps get him removed.

Assuming that the person is just a designee for the un-probated estate (I will call him the "representative"), I would suggest that you look to ORS 90.675(20), which applies when a resident living alone passes away. Subsection (20) is summarized below, but should not be used as a substitute for reading ORS 90.675 (linked here) in its entirety:

• This subsection (20) applies the same duties as those of a resident who abandoned the property.
• It also applies to any personal representative named in a will or appointed by a court, or any person designated in writing by the decedent to be contacted by the landlord in the event of the tenant's death;
• The 45-day abandonment notice required in ORS 90.675(3) (go to above link) is to be sent by first class mail to this representative at the premises, and also personally delivered or sent by first class mail to them if actually known to the landlord.
• If the representative responds by actual notice to a landlord within the 45-day period provided in the letter and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the personal property may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later.
• Note: Entering into the storage agreement includes the duty to pay a "storage fee" which can be no higher than the space rent. This duty is not triggered until the 45-day letter is sent. Presumably you will use a good storage agreement that requires, among other things, compliance with all applicable park rules and state, federal and local laws and ordinances, including a duty to maintain the space. On- site destruction of the home is NOT maintaining the space. Depending upon the home's age, on site destruction could be a violation of certain environmental laws, due to potentially hazardous material used in construction. In fact, since there is a risk that the representative will not comply with the storage agreement - based on his threat of destruction - you may want to consider - only upon the advice of your attorney - to restrict his unsupervised access to the home. Destruction of the home would not only take it off the tax rolls in violation of Oregon property tax law, but it would prevent you, as the landlord, from selling the home upon failure of the representative to meet his obligations. Remember, in addition to the tax collector, you have a vested interest in seeing the home sold for recoupment any sums due (arguably including attorney fees) incurred during the abandonment process.
• Since the abandonment law requires that the landlord has a duty of safe keeping pending completion of the abandonment process, it is my belief[1] that this entitles the landlord to secure the home (e.g. with a new lock) so that heirs and others cannot enter and remove personal property.
• A storage agreement entitles the representative to store the personal property on the space during the term of the agreement, but does not entitle anyone to occupy the personal property.
• If such an agreement is entered into, the landlord may not enter a similar agreement with a lienholder (if any) until the agreement with the representative ends.
• If the representative requests that a landlord enter into a storage agreement and there is a lienholder, also, you should review subsections (19)(c) to (e) and (g)(C) of ORS 90.675, which describes the rights and responsibilities of a lienholder with regard to the storage agreement.
• During the term of the Storage Agreement, the representative has the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir who wishes to leave the property on the space and become a tenant. However, this prospective tenant is subject to the same statutory requirement, including landlord qualification and approval, as found in ORS 90.680 (linked here). The landlord also may condition approval for occupancy upon payment of all unpaid storage charges and maintenance costs.
• If the representative violates the storage agreement, the landlord may terminate it by giving at least 30 days' written notice to them stating facts sufficient to notify them of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the Storage Agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative.

• Upon the failure of a representative to enter into a storage agreement or upon termination of an agreement, unless the parties otherwise agree or the representative has sold or removed the home, the landlord may sell or dispose of it pursuant to sale provisions of ORS 90.675 without further notice to the representative.

So, in summary, the abandonment statute - which is quite lengthy and somewhat difficult to follow - applies in this case, and with proper guidance, you should be able to successfully deal with the representative.

[1] I'm not rendering a "legal opinion" in this Answer - PCQ

Answer: This sounds like an episode from a Jerry Springer reality show! Your question doesn'tmake it clear whether the estate was formally filed for probate in court, in which case this "Administrator" would be subject to court supervision and would have to have a bond. I'm suspecting that is not the case - but if it is, you may want to secure legal counsel to notify the court of what's happening and perhaps get him removed.

Assuming that the person is just a designee for the un-probated estate (I will call him the "representative"), I would suggest that you look to ORS 90.675(20), which applies when a resident living alone passes away. Subsection (20) is summarized below, but should not be used as a substitute for reading ORS 90.675 (linked here) in its entirety:

• This subsection (20) applies the same duties as those of a resident who abandoned the property.
• It also applies to any personal representative named in a will or appointed by a court, or any person designated in writing by the decedent to be contacted by the landlord in the event of the tenant's death;
• The 45-day abandonment notice required in ORS 90.675(3) (go to above link) is to be sent by first class mail to this representative at the premises, and also personally delivered or sent by first class mail to them if actually known to the landlord.
• If the representative responds by actual notice to a landlord within the 45-day period provided in the letter and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the personal property may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later.
• Note: Entering into the storage agreement includes the duty to pay a "storage fee" which can be no higher than the space rent. This duty is not triggered until the 45-day letter is sent. Presumably you will use a good storage agreement that requires, among other things, compliance with all applicable park rules and state, federal and local laws and ordinances, including a duty to maintain the space. On- site destruction of the home is NOT maintaining the space. Depending upon the home's age, on site destruction could be a violation of certain environmental laws, due to potentially hazardous material used in construction. In fact, since there is a risk that the representative will not comply with the storage agreement - based on his threat of destruction - you may want to consider - only upon the advice of your attorney - to restrict his unsupervised access to the home. Destruction of the home would not only take it off the tax rolls in violation of Oregon property tax law, but it would prevent you, as the landlord, from selling the home upon failure of the representative to meet his obligations. Remember, in addition to the tax collector, you have a vested interest in seeing the home sold for recoupment any sums due (arguably including attorney fees) incurred during the abandonment process.
• Since the abandonment law requires that the landlord has a duty of safe keeping pending completion of the abandonment process, it is my belief[1] that this entitles the landlord to secure the home (e.g. with a new lock) so that heirs and others cannot enter and remove personal property.
• A storage agreement entitles the representative to store the personal property on the space during the term of the agreement, but does not entitle anyone to occupy the personal property.
• If such an agreement is entered into, the landlord may not enter a similar agreement with a lienholder (if any) until the agreement with the representative ends.
• If the representative requests that a landlord enter into a storage agreement and there is a lienholder, also, you should review subsections (19)(c) to (e) and (g)(C) of ORS 90.675, which describes the rights and responsibilities of a lienholder with regard to the storage agreement.
• During the term of the Storage Agreement, the representative has the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir who wishes to leave the property on the space and become a tenant. However, this prospective tenant is subject to the same statutory requirement, including landlord qualification and approval, as found in ORS 90.680 (linked here). The landlord also may condition approval for occupancy upon payment of all unpaid storage charges and maintenance costs.
• If the representative violates the storage agreement, the landlord may terminate it by giving at least 30 days' written notice to them stating facts sufficient to notify them of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the Storage Agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative.

• Upon the failure of a representative to enter into a storage agreement or upon termination of an agreement, unless the parties otherwise agree or the representative has sold or removed the home, the landlord may sell or dispose of it pursuant to sale provisions of ORS 90.675 without further notice to the representative.

So, in summary, the abandonment statute - which is quite lengthy and somewhat difficult to follow - applies in this case, and with proper guidance, you should be able to successfully deal with the representative.

[1] I'm not rendering a "legal opinion" in this Answer - PCQ

Question. We have a problem and I'm looking for guidance as to the proper way to handle it. Our well is going dry. Upon inspection, our well expert said we had only four feet of water. Although the system recovers overnight, there have been numerous occasions when the holding tank (2600 gallon capacity) is below 500 gallons. Fortunately, our pump has a system that prevents it from overheating or working when no water is available.

Our water system serves a community of 29 mobile homes and 41 RV spaces.

I have issued two notices informing residents of the water problem and requesting that they voluntarily conserve water use. Most have complied. Although the park owner is currently working with the local municipality to get our park on city water, this may not happen soon enough to avoid a serious water crisis.

I do not have the background to know what can legally be done to compel users to conserve. Can you point me in the right direction?

Answer. First, I will assume that you have confirmed the well is going dry - as opposed to other problems having to do with the pump.[1]

90.730(2) ("Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition") provides that community landlords have a duty to maintain the rented spaces, vacant spaces, and common areas in a "habitable condition". For purposes of your water supply, 90.730(3)(c) says a space is considered unhabitable if it substantially lacks a '_water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord."

My reading of this means that even though your system is failing in terms of providing an adequate supply of water, the spaces for residents owning their homes, are not "unhabitable" so long as it is safe and in good working order to the extent you can control the system.

As to your RV residents, your duties are not defined by the manufactured housing section of the landlord-tenant law, but by the general landlord-tenant law. See, ORS 90.320(1)(c). This statute imposes essentially the same obligation as that is contained in ORS 90.730.

One caveat: Your habitability obligation is subject to the extent you can control the water supply system. While you cannot "control" a failing well, you can explore the feasibility of (a) digging a new well, (b) digging the existing well deeper, or (c) making sure the water problem is not due to problems with the pump.[2] I can't tell from your question whether you've explored those possibilities.

Assuming that you are unable to do either (a) or (b), due to the current condition of the underground aquifers, or financial constraints, and (c) is not the problem, then it appears your only alternative is to continue working with the municipality to bring in city water - and hope a crisis can be avoided.

This brings me to your question, i.e. what can you do to "compel users to conserve"? Under the Oregon landlord-tenant law, I believe your options are limited. You could institute a water conservation regime for those owning their manufactured home through a rule change[3] - assuming not over 51% objected, and assess fines for the scofflaws. For RV tenants, you may institute the change anytime, although I suggest not less than 30-day notice.[4] Of course, enforcing this, would be difficult, since it would turn neighbor vs. neighbor.[5]

On the other hand, the threat of fines, may be sufficient to compel voluntary compliance. Education is the first step, i.e. making sure that everyone is water conscious. This would include providing information to residents about detecting and repairing leaks, and installing water saving devices.

Lastly, you need to prioritize your conservation efforts. Here is what I mean:

• RV tenants who come into the park should be informed of the situation, and told that if they don't conserve, they will be asked to leave with a 30-day notice. Before accepting them as tenants, you could require that they certify they have no leaks, and that they have installed certain water saving devices. In other words, the certification would be required as a condition of occupancy.
• Existing RV tenants already in the park who have been residents less than one year, can also be informed of the need to conserve, or they will be asked to leave with a 30-day notice. They too could be asked to certify they have undertaken the above-referenced conservation efforts.
• Existing RV tenants who have resided in the park over one year, should be informed of the need to conserve, or they will be asked to leave with a 60-day notice. They too could be asked to certify they have undertaken the above-referenced conservation efforts.
• For manufactured home tenants who come into the park, they should be informed of the situation and asked to certify they have no leaks, and that they have installed certain water saving devices.

For existing manufactured home tenants, you can ask, but can't require (short of a rule change) that they conserve, and certify having done so.

If the problem appears to be getting worse and residents leave, you should consider not filling the space - especially owners of manufactured homes - until you can get on city water.

[1] For a discussion of well water problems, see: http://wellwater.engr.oregonstate.edu/well-going-dry.

[2] I'm not an expert in this area of the law, so am limited as to what your viable options are. These issues are better left to your well driller and other experts in the area.

[3] See, ORS 90.610(3) - (7).

[4] The statute, ORS 90.262 allows rule changes "from time to time" which tells me you do not need advance notice. However, if some existing residents believed it worked a substantial modification of their bargain, they could object.

[5] Assessment of a fine should clarify that it is not a "charge" for the use of the extra water, but a "fine" for violation of the rule. The reason is that ORS 90.532(9) states that a landlord may not assess a utility or service charge for water unless the water is provided to the landlord by a: (a) Public utility; (b) Municipal utility; (c) People's utility district; (d) Cooperative; (e) Domestic water supply district; or (f) Water improvement district. Thus, since your water comes from a well, you must avoid the appearance of assessing a "charge" for the excess water use.

Question: A resident living alone passed away. It took some time for the estate to get underway because they had to search for heirs. An heir was located and was appointed as Administrator to act on behalf of the estate. Shortly after the resident’s passing, we began requesting that a Storage Agreement be signed but the estate was hesitant to do so until the Administrator was appointed. After the appointment the Administrator was initially cooperative, but unexpectedly changed his mind and is now threatening to bring all of the past due rent current, and then, out of spite, tear the home down while still on the space. Presumably, after doing so, we would expect the Administrator to cease all further space rental payments. How should we handle this?

Answer: This sounds like an episode from a Jerry Springer reality show! Your question doesn’t make it clear whether the estate was formally filed for probate in court, in which case this “Administrator” would be subject to court supervision and would have to have a bond. I’m suspecting that is not the case – but if it is, you may want to secure legal counsel to notify the court of what’s happening and perhaps get him removed.

Assuming that the person is just a designee for the un-probated estate (I will call him the “representative”), I would suggest that you look to ORS 90.675(20), which applies when a resident living alone passes away. Subsection (20) is summarized below, but should not be used as a substitute for reading ORS 90.675 (linked here) in its entirety:

• This subsection (20) applies the same duties as those of a resident who abandoned the property.

• It also applies to any personal representative named in a will or appointed by a court, or any person designated in writing by the decedent to be contacted by the landlord in the event of the tenant’s death;

• The 45-day abandonment notice required in ORS 90.675(3) (go to above link) is to be sent by first class mail to this representative at the premises, and also personally delivered or sent by first class mail to them if actually known to the landlord.

• If the representative responds by actual notice to a landlord within the 45-day period provided in the letter and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the personal property may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later.

• Note: Entering into the storage agreement includes the duty to pay a “storage fee” which can be no higher than the space rent. This duty is not triggered until the 45-day letter is sent. Presumably you will use a good storage agreement that requires, among other things, compliance with all applicable park rules and state, federal and local laws and ordinances, including a duty to maintain the space. On- site destruction of the home is NOT maintaining the space. Depending upon the home’s age, on site destruction could be a violation of certain environmental laws, due to potentially hazardous material used in construction. In fact, since there is a risk that the representative will not comply with the storage agreement – based on his threat of destruction - you may want to consider – only upon the advice of your attorney – to restrict his unsupervised access to the home. Destruction of the home would not only take it off the tax rolls in violation of Oregon property tax law, but it would prevent you, as the landlord, from selling the home upon failure of the representative to meet his obligations. Remember, in addition to the tax collector, you have a vested interest in seeing the home sold for recoupment any sums due (arguably including attorney fees) incurred during the abandonment process.

• Since the abandonment law requires that the landlord has a duty of safe keeping pending completion of the abandonment process, it is my belief that this entitles the landlord to secure the home (e.g. with a new lock) so that heirs and others cannot enter and remove personal property.

• A storage agreement entitles the representative to store the personal property on the space during the term of the agreement, but does not entitle anyone to occupy the personal property.

• If such an agreement is entered into, the landlord may not enter a similar agreement with a lienholder (if any) until the agreement with the representative ends.

• If the representative requests that a landlord enter into a storage agreement and there is a lienholder, also, you should review subsections (19)(c) to (e) and (g)(C) of ORS 90.675, which describes the rights and responsibilities of a lienholder with regard to the storage agreement.

• During the term of the Storage Agreement, the representative has the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir who wishes to leave the property on the space and become a tenant. However, this prospective tenant is subject to the same statutory requirement, including landlord qualification and approval, as found in ORS 90.680 (linked here). The landlord also may condition approval for occupancy upon payment of all unpaid storage charges and maintenance costs.

• If the representative violates the storage agreement, the landlord may terminate it by giving at least 30 days’ written notice to them stating facts sufficient to notify them of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the Storage Agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative.

• Upon the failure of a representative to enter into a storage agreement or upon termination of an agreement, unless the parties otherwise agree or the representative has sold or removed the home, the landlord may sell or dispose of it pursuant to sale provisions of ORS 90.675 without further notice to the representative.

So, in summary, the abandonment statute – which is quite lengthy and somewhat difficult to follow – applies in this case, and with proper guidance, you should be able to successfully deal with the representative.

Answer. ORS 90.545(Fixed Term Tenancies) provides that unless you take action not less than 60 days prior to the end of the term, the lease becomes a month-to-month tenancy on the same conditions as the original lease. 

The only exception to this is for the landlord to submit a proposed new lease to the tenant at least 60 days prior to the ending date of the term. Any provisions that are new, i.e. not in the prior lease, are to be summarized in a written statement; the same applies if the landlord is going to create new community rules. Remember, however, that if there are substantive changes to either or both of these two sets of park documents, you may also have to issue a new Statement of Policy under ORS 90.510,[1]which is a summary explanation of certain park policies provided to new and existing residents.

If you introduce new lease terms or new rules, they must “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or are the same as those offered to new or prospective tenants in the community.”

Note, however, that the new lease terms or rules cannot relate to the “…age, size, style, construction material or year of construction of the manufactured dwelling” *** and cannot “…require an alteration of the manufactured dwelling *** or new construction of an accessory building or structure.

The tenant must accept or reject the proposed new lease at least 30 days prior to the ending of the term by giving written notice to the landlord.

So, your choice on expiring leases under ORS 90.545 is: (a) To do nothing, in which case the lease morphs into a month-to-month tenancy on the same terms as the earlier lease, or (b) Introduce a new lease and/or rules that “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or are the same as those offered to new or prospective tenants in the community.”

You do not have an option to notnon-renew the tenant at the end of a lease term.  This is not to say that you are limited in termination  for cause under: ORS 86.782(6)(c) (foreclosure trustee sale),90.380(5) (dwelling posted asunsafe by gov’t),90.392 (termination for cause),90.394 (termination forfailure to pay rent),90.396 (termination on 24-hour notice),90.398(termination drugs, alcohol),90.405 (termination, unpermitted pet),90.440(termination in group recovery facility)or90.445 (termination for criminalact).  

As to the summary, the statute simply says that “(t)he landlord shall include with the proposed agreement a written statement that summarizesany new or revised terms, conditions, rules or regulations.” (Emphasis added.)

However, since you will have many changes to the new lease, you ask about two possible alternatives: Either to send the new lease to the tenant: (a) and inform him/her it has numerous updates and they should read it as if it were a completely new edition; or (b) “…offer a redline version which they wouldn’t be able to read.”

ORS 90.130 provides:

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.”

I read that to mean that good faith compliance is satisfactory in this case. Since ORS 90.545 does not elaborate about the written summary, I would opt for an approach that gives you more coverage rather than less. Both of your alternatives, especially (a) standing alone, could be attacked by residents as insufficient since it really doesn’t comply – if the goal is to inform and educate residents about the new changes. Alternative (a) is too little, and (b) is too much.

My view is that you don’t have to detail every single change, just the material ones that aid in understanding the nature and scope of the new provisions. Stylistic changes that do not alter the substance of the new text don’t need to be addressed. As to material changes, they should be summarized.

I would give the new lease to the residents together with a marked redline showing the material changes.[2]I would then include a distillation of the material changes in the new lease into categories and short summaries.

For example:

• Rule No. ___, Late Fees: they are going to increase from X$ to $Y;
• Rule No. ___, Pets: There will be a fine for pet violations;
• Rule No. ___, Mediation: Adds mediation rules under the recently enacted SB 586 Sec. 7 et seq. (2019) and provides that Landlord has the duty to mediate if requested by Tenant. See,https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/SB586;
• Rule No. ___, Occupants: Tenants must now notify manager within X days of the person coming into the park and obtain a Temporary Occupancy Agreement.

Be sure the notice invites residents to contact the park manager if they have any questions. I believe this approach meets the spirit and intent of ORS 90.545, and is in good faith compliance with the law.  

Lastly, before sending out the notice, enlist the help of someone who is not privy to the changes, and ask them to read your summary. If they understand it (without your coaching), then send. If not, I would re-work the language until it is clear. The goal is to avoid ambiguity in the summary; but if reasonable minds can differ as to the meaning of the new summary, it is, per se’ambiguous, and needs to be clarified before sending.

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.

Answer: First, it must be noted that since tenants are not “owners,” and therefore, the caselaw and statutes that might apply to the latter do not necessarily apply to tenants in manufactured housing communities where the Spaces are rented.

Since landlords are the “owners” of the community, so they should maintain good liability insurance coverage because even if maintenance of a non-hazard tree may be the tenant’s responsibility based on the park rules or rental agreement, (a) he or she may not have sufficient assets or insurance to cover the damage caused – especially if it involves personal injury, and (b) even if they do have coverage, there is a good chance the tenant or the insurance carrier, may try to pass the liability on to the landlord either for indemnity or contribution.

It is also important that landlords have good rules in place that are consistently enforced. Setting aside the hazard tree issue, which are mandated by statute, park rules should be clear in addressing each resident’s duties regarding maintenance responsibilities for non-hazard trees, especially in dealing with low hanging limbs over the resident’s home or that cross over onto another resident’s space. This is especially important where limbs are over a home, patio, driveway, and play areas.

Oregon law allows landlords to require that tenants carry liability insurance not exceeding $100,000.[1] The rental agreement may be unilaterally amended to impose the insurance, subject to 30-days’ notice.[2]

Before we address liability, we must first address duties. Is the tree a “hazard tree” – which is generally the landlord’s duty unless assumed by the tenant as discussed below. If it is not a hazard tree, who has responsibility? That depends upon what the rules and rental agreement say. If the issue is not addressed in those documents, it is – in my opinion - almost certain the landlord will be held responsible if any damages occur. ORS 90.740 governing tenant duties, does not deal with maintenance of trees, except for watering and removal of fallen limbs. ORS 90.730, governing landlord responsibilities, does not address maintenance of trees on the tenant’s space. For common areas, the landlord is liable for maintenance of all trees.

This means that if the issue is entirely ignored in the rules or rental agreement, it will fall to the landlord.

Definitions. The hazard tree statute, ORS 90.727, provides the following definitions:

Maintenance.  “Maintaining a tree” means removing or trimming it for the purpose of eliminating features of the tree that cause it to be hazardous or may cause it to become hazardous in the near future. The term “hazardous” is discussed below.
Removal. “Removing a tree” includes both felling and removing it and also grinding or removing the stump.

Hazard Trees. ORS 90.100(20) defines them as trees located in a manufactured housing community measuring at least eight inches DBH[3] and “…considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) 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.” (Emphasis added.)

Landlord Duties. The following hazard tree rules apply under the statute:

Landlord must maintain a tree that is a hazard tree (i.e., that was not planted by the current tenant) on the Space if “…the landlord knows or should know that the tree is a hazard tree.”
Landlord may maintain a tree on the Space to prevent the tree from becoming a hazard tree. Prefacing the statute with “may” means it is not mandatory. But if the issue is not covered in the rules or rental agreement, guess what? If the tenant does not maintain the tree voluntarily, it could ultimately become a “hazard tree” thereby removing any doubt about who has the duty to maintain.
Landlords have discretion in deciding whether the appropriate maintenance is removal or trimming of the hazard tree.
 Landlords are not responsible for (a) maintaining a tree that is not a hazard tree or (b) for maintaining any tree for aesthetic purposes.
ORS 90.725 is the general access statute for all landlords and tenants. It is lengthy and detailed. But ORS 90.727(4) requires that the reasonable notice be given to inspect a tree and “…except as necessary to avoid an imminent and serious harm to persons or property, a reasonable opportunity for the tenant to maintain the tree. The notice must specify any tree that the landlord intends to remove.”

Tenant Duties.  Except as provided above, the tenant is responsible – at their expense - for maintaining the trees on their Space. (Notwithstanding this provision, I believe it is good practice to include the responsibility in the rules or rental agreement.) Tenants may retain certain qualified arborists[4] to inspect a tree on their Space, and if the arborist determines that the tree is a hazard, the tenant may either (a) require the landlord to maintain the hazard tree, or (b) maintain the tree at the tenant’s expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist’s report.

Whether it is the tenant’s duty or the landlord’s based upon the above rules, maintenance of any tree with a DBH of eight inches or more requires engaging the services of a landscape construction professional with a valid license issued pursuant to ORS 671.560.

Tree Interfering With Removal Home. If a tenant’s home cannot be removed without first removing or trimming a tree on the Space, the owner of the home may remove or trim the tree at the tenant’s expense, after giving reasonable written notice to the landlord.

General Liability Issues. What follows are my opinions only, and not legal advice. In addressing these issues, I am following general real estate laws.

Who is responsible if a non-hazard tree – or limbs, falls on the resident’s home or injures a resident or guest?
Under ORS 90.727(5), it is the tenant’s responsibility. If the tenant has their home insured, it would be submitted to the insurance carrier. Otherwise, it’s absorbed by the tenant. If they have health insurance, the injury should be covered.
Who is responsible if a non-hazard tree – or limbs, fall on the neighbor’s home or injures the resident or a guest?
 Does the tenant on whose space the tree grows, have liability insurance? If a claim is brought by the neighbor against that tenant, the liability carrier will likely cover it.
If the neighbor whose home was damaged had property damage insurance, that carrier would pay, and if the tenant was responsible for tree maintenance by virtue of ORS 90.727(5) the carrier might bring a subrogated[5] claim against the tenant if he/she has assets or liability insurance.
If the neighbor was injured and had health insurance, the same rules would apply as above.
Who is responsible if the roots of a non-hazard tree protrude under the resident’s home, or onto the neighbor’s Space and cause that home to become out of level or otherwise damaged?
ORS 90.730(3)(g) provides that “…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.” (Emphasis added.)
This suggests that the root system from the non-hazard tree is going to be the landlord’s problem if safety becomes an issue as the tree remains there.
For this reason, landlords should be attentive to the problem, especially upon the change of ownership of the home, i.e., before the offending root system causes more damage.
What if a non-hazard tree is blown over in a storm or struck by lightning, and cause damages or injuries to tenants or their property?
This is well beyond my real estate legal skill set, except to say that “Acts of God” e.g., weather, forest fires, earthquakes, etc. would not normally create liability to the tenant unless the risk was foreseeable and/or the result of an intentional or grossly negligence act of the tenant – e.g., the tenant damaged the tree affecting its stability, but allowed it to remain on the Space. Certainly, the damage or injuries resulting from the non-hazardous tree would be covered by health or property damage insurance, if the affected resident carried it.

Lastly, notwithstanding the ORS 90.727(5) imposes non-hazard tree maintenance responsibility on the tenant, management must be careful to assure that they are safe. The cost of trimming to prevent a tree from becoming a hazard tree could be significant, and beyond the tenant’s financial capacity. For that reason, among others, it is my belief management must be vigilant about the safety of all trees on the residents’ spaces.

[1] See, ORS 90.222. This statute is quite detailed. It must be reviewed carefully before a landlord attempts to require it of the residents.

[2] Interestingly, the 30-day notice only applies to month-to-month tenants; it is therefore doubtful that a fixed term lease can be unilaterally amended. Landlords using leases for new residents should consider requiring it in the lease from the start.

[3] The width of a standing tree at four and one-half feet above the ground on the uphill side. Don’t tell the Woke Police, but “DBH” stands for “Diameter at breast height.”

[4] Details in ORS 90.727(5).

[5] Subrogation is a concept that permits an insurance company to pay their insured’s claim and then recover the amount paid from the party ultimately liable for the damage or injury.

Answer: First, it must be noted that since tenants are not “owners,” and therefore, the caselaw and statutes that might apply to the latter do not necessarily apply to tenants in manufactured housing communities where the Spaces are rented.

Since landlords are the “owners” of the community, so they should maintain good liability insurance coverage because even if maintenance of a non-hazard tree may be the tenant’s responsibility based on the park rules or rental agreement, (a) he or she may not have sufficient assets or insurance to cover the damage caused – especially if it involves personal injury, and (b) even if they do have coverage, there is a good chance the tenant or the insurance carrier, may try to pass the liability on to the landlord either for indemnity or contribution.

It is also important that landlords have good rules in place that are consistently enforced. Setting aside the hazard tree issue, which are mandated by statute, park rules should be clear in addressing each resident’s duties regarding maintenance responsibilities for non-hazard trees, especially in dealing with low hanging limbs over the resident’s home or that cross over onto another resident’s space. This is especially important where limbs are over a home, patio, driveway, and play areas.

Oregon law allows landlords to require that tenants carry liability insurance not exceeding $100,000.[1] The rental agreement may be unilaterally amended to impose the insurance, subject to 30-days’ notice.[2]

Before we address liability, we must first address duties. Is the tree a “hazard tree” – which is generally the landlord’s duty unless assumed by the tenant as discussed below. If it is not a hazard tree, who has responsibility? That depends upon what the rules and rental agreement say. If the issue is not addressed in those documents, it is – in my opinion - almost certain the landlord will be held responsible if any damages occur. ORS 90.740 governing tenant duties, does not deal with maintenance of trees, except for watering and removal of fallen limbs. ORS 90.730, governing landlord responsibilities, does not address maintenance of trees on the tenant’s space. For common areas, the landlord is liable for maintenance of all trees.

This means that if the issue is entirely ignored in the rules or rental agreement, it will fall to the landlord.

Definitions. The hazard tree statute, ORS 90.727, provides the following definitions:

• Maintenance.  “Maintaining a tree” means removing or trimming it for the purpose of eliminating features of the tree that cause it to be hazardous or may cause it to become hazardous in the near future. The term “hazardous” is discussed below.
• Removal. “Removing a tree” includes both felling and removing it and also grinding or removing the stump.

Hazard Trees. ORS 90.100(20) defines them as trees located in a manufactured housing community measuring at least eight inches DBH[3] and “…considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) 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.” (Emphasis added.)

Landlord Duties. The following hazard tree rules apply under the statute:

• Landlord must maintain a tree that is a hazard tree (i.e., that was not planted by the current tenant) on the Space if “…the landlord knows or should know that the tree is a hazard tree.”
• Landlord may maintain a tree on the Space to prevent the tree from becoming a hazard tree. Prefacing the statute with “may” means it is not mandatory. But if the issue is not covered in the rules or rental agreement, guess what? If the tenant does not maintain the tree voluntarily, it could ultimately become a “hazard tree” thereby removing any doubt about who has the duty to maintain.
• Landlords have discretion in deciding whether the appropriate maintenance is removalor trimming of the hazard tree.
•  Landlords are not responsible for (a) maintaining a tree that is not a hazard tree or (b) for maintaining any tree for aesthetic purposes.
• ORS 90.725 is the general access statute for all landlords and tenants. It is lengthy and detailed. But ORS 90.727(4) requires that the reasonable notice be given to inspect a tree and “…except as necessary to avoid an imminent and serious harm to persons or property, a reasonable opportunity for the tenant to maintain the tree. The notice must specify any tree that the landlord intends to remove.”

Tenant Duties.  Except as provided above, the tenant is responsible – at their expense - for maintaining the trees on their Space. (Notwithstanding this provision, I believe it is good practice to include the responsibility in the rules or rental agreement.) Tenants may retain certain qualified arborists[4] to inspect a tree on their Space, and if the arborist determines that the tree is a hazard, the tenant may either (a) require the landlord to maintain the hazard tree, or (b) maintain the tree at the tenant’s expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist’s report.

Whether it is the tenant’s duty or the landlord’s based upon the above rules, maintenance of any tree with a DBH of eight inches or more requires engaging the services of a landscape construction professional with a valid license issued pursuant to ORS 671.560.

Tree Interfering With Removal Home. If a tenant’s home cannot be removed without first removing or trimming a tree on the Space, the owner of the home may remove or trim the tree at the tenant’s expense, after giving reasonable written notice to the landlord.

General Liability Issues. What follows are my opinions only, and not legal advice. In addressing these issues, I am following general real estate laws.

• Who is responsible if a non-hazard tree – or limbs, falls on the resident’s home or injures a resident or guest?
  • Under ORS 90.727(5), it is the tenant’s responsibility. If the tenant has their home insured, it would be submitted to the insurance carrier. Otherwise, it’s absorbed by the tenant. If they have health insurance, the injury should be covered.
• Who is responsible if a non-hazard tree – or limbs, fall on the neighbor’s home or injures the resident or a guest?
  •  Does the tenant on whose space the tree grows, have liability insurance? If a claim is brought by the neighbor against that tenant, the liability carrier will likely cover it.
  • If the neighbor whose home was damaged had property damage insurance, that carrier would pay, and if the tenant was responsible for tree maintenance by virtue of ORS 90.727(5) the carrier might bring a subrogated[5] claim against the tenant if he/she has assets or liability insurance.
  • If the neighbor was injured and had health insurance, the same rules would apply as above.

• Who is responsible if the roots of a non-hazard tree protrude under the resident’s home, or onto the neighbor’s Space and cause that home to become out of level or otherwise damaged?
  • ORS 90.730(3)(g) provides that “…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.” (Emphasis added.)
  • This suggests that the root system from the non-hazard tree is going to be the landlord’s problem if safety becomes an issue as the tree remains there.
  • For this reason, landlords should be attentive to the problem, especially upon the change of ownership of the home, i.e., before the offending root system causes more damage.
• What if a non-hazard tree is blown over in a storm or struck by lightning, and cause damages or injuries to tenants or their property?
  • This is well beyond my real estate legal skill set, except to say that “Acts of God” e.g., weather, forest fires, earthquakes, etc. would not normally create liability to the tenant unless the risk was foreseeable and/or the result of an intentional or grossly negligence act of the tenant – e.g., the tenant damaged the tree affecting its stability, but allowed it to remain on the Space. Certainly, the damage or injuries resulting from the non-hazardous tree would be covered by health or property damage insurance, if the affected resident carried it.

Lastly, notwithstanding the ORS 90.727(5) imposes non-hazard tree maintenance responsibility on the tenant, management must be careful to assure that they are safe. The cost of trimming to prevent a tree from becoming a hazard tree could be significant, and beyond the tenant’s financial capacity. For that reason, among others, it is my belief management must be vigilant about the safety of all trees on th

[1] See, ORS 90.222. This statute is quite detailed. It must be reviewed carefully before a landlord attempts to require it of the residents.

[2] Interestingly, the 30-day notice only applies to month-to-month tenants; it is therefore doubtful that a fixed term lease can be unilaterally amended. Landlords using leases for new residents should consider requiring it in the lease from the start.

[3] The width of a standing tree at four and one-half feet above the ground on the uphill side. Don’t tell the Woke Police, but “DBH” stands for “Diameter at breast height.”

[4] Details in ORS 90.727(5).

[5] Subrogation is a concept that permits an insurance company to pay their insured’s claim and then recover the amount paid from the party ultimately liable for the damage or injury.