Phil Querin Q&A: Hazard Trees & The Root of the Problem

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June 29, 2015
Phil Querin
MHCO Legal Counsel
Querin Law

Question. Our park has Ash trees on most of the spaces, planted by the owners when the spaces were first occupied.  Most of the trees are between thirty and forty years old.

We routinely maintain the above-ground parts of the trees.  We prune and repair the trees as needed, and occasionally remove trees when necessary.  In some cases the roots have damaged walkways or street curbs, creating potential trip hazards.  When that happens we hire contractors to remove the damaged concrete and the intruding roots, and replace the concrete.  The park absorbs these costs.

My question has to do with other types of root damage.  We recently repaired damaged walkways and curbs at several spaces.  In addition to the damage we repaired, two residents complained of additional damage.  

In one case it appears that a root was lifting a pier block under the deck, causing the deck to rise at one corner.  I had the contractor cut the root while they were repairing the walkway, which should stop the root from growing, and the deck from lifting.  The resident has now demanded that I remove the root and re-level the deck.  This looks like a pretty big job that could easily snowball.

In another case the homeowner has noticed that the floor of the home is out of level.  It appears that a root is lifting one or more of the supports under the home.  I expect her to ask me to pay for getting the home re-leveled.

As the park owner, what is my responsibility for damage such as this to the manufactured home structure caused by tree roots?  These trees are all greater than 8 inches DBH.  It seems to me that if root intrusion issues are brought into the mix, any tree over 8 inches DBH would automatically be a hazard tree.  Is that really how we should be interpreting the law?

Answer.  The hazard tree legislation is relatively new; it was passed by the Oregon Legislature in 2013.  Here is a summary:

  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;
    • Landlord 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.

 

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]

Discussion. As you can see from the above, the definition of a hazard tree relates to whether it poses an unreasonable risk  of  serious  physical  harm  or  damage  to individuals or  property in the  near  future. The size of the tree alone, i.e. exceeding eight inches or more DBH, does not, in itself, make it a hazard tree; there must be potential for injury or damage in the near future.

Secondly, you will note that the hazard tree statutes make no distinction as to what part of the tree causes damage or injury. Although I had some involvement, along with John Van Landingham and others, in the creation of the legislation, speaking for myself, I was focused on the tree or branches falling on a home or resident. I was not thinking about damage from root systems.

Third, a landlord’s removal obligation for hazard trees speaks to felling and removing them, and removing or grinding the stumps. Again, speaking only for myself, I was not thinking about tree roots that might remain after the stump is removed. (As a layperson, I think of the stump as the unremoved portion of the downed tree, and that portion below ground necessary to return the ground to its original level, sans the tree. But I certainly didn’t focus on requiring that landlords remove root systems.

All of this is to say that my reading of the hazard tree statutes seems to make no distinction between damage above or below ground. Moreover, I suspect we would agree that damage to the foundation of a resident’s home, could fall within the definition of what constitutes a hazard tree.

Remember that pursuant to ORS 90.730(4), the failure to maintain a hazard tree can constitute a habitability violation for which a tenant could bring a claim against their landlord.

Conclusion. Unfortunately, it appears to me that absent some language in the hazard tree statutes indicating an intent to exclude that portion of a tree below ground, i.e. its root system, a case could be made that remediating the damage caused by a hazard tree to a resident’s home, or the cost to relevel it, is on your shoulders.   

This does not mean, however, that the root systems of all felled hazard trees need to be removed. Once the tree is downed, and the trunk removed, the root system will not (as I understand it[1]) continue to grow. That being the case, if the roots are not posing a danger to a resident’s space or the common area, there should be little reason to remove it. 

The take-away here, is that landlords should be proactive in assessing hazard tree issues. This may include inspection of resident spaces. And when evaluating risk, landlords should look down, as well as up.

One interesting question, which I will not opine on here, is what a landlord should do about an otherwise healthy tree that is least eight inches DBH, if its root system poses, or could pose, a risk of damage to a resident’s home. Must the tree be removed now?

 


[1] I suspect the major exception is bamboo trees, whose root systems seem to have a zombie-like life of their own. 

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