Phil Querin Q&A: Large Tree Damaging Sewer Lines

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April 6, 2017
Phil Querin
MHCO Legal Counsel

Question. I read some articles that MHCO published about trees, but am still seeking a little clarification about tree roots. Our situation is this: A long term resident has a very large tree on their space.  I don't believe the tree was planted by them or their family. It is not a hazardous tree but does have a DBH of more than 8". The tenant recently reported a blockage with the sewer lateral on their space (not the main park line).  We hired a company to clear the blockage which was tree roots.  Is the park owner or the resident responsible for tree roots growing underground that affect a resident’s plumbing? Is the resident’s sewer lateral (and other underground utilities for that matter) considered their personal property and the repair or upkeep to keep roots clear the park owners responsibility?  Any clarification you can provide is much appreciated. 

 

 

Answer.  Let’s brush up on Oregon’s hazard tree law as it relates to landlord-tenant responsibilities:

 

  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.  (Italics and underscore mine.)

 

  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.

 

  1. 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.

 

The first question is whether this is a “hazard tree”?  You say it is not, but based upon measurement, it is. Note that the statutory definition above says it is a hazard tree if it poses “… an unreasonable risk  of causing  serious  physical  harm  or  damage  to individuals or  property in the  near  future.”

 

My take is that this is a hazard tree, since it meets the physical specs, and not only is capable of causing serious damage, but its root system already has.  At the risk of oversimplification, botanically speaking, the tree is the entire plant, not just the above-ground portion. While it is does not sound like it is in danger of toppling on anyone or anything, it does sound as if its root system is interfering with the resident’s sewage system.[1]

 

Again, at the risk of oversimplification, I don’t believe the issue is who actually owns the resident’s lateral sewer line.  Why? Because I suspect that the sewer system was not installed by the resident – it was likely installed at the time the park was developed. It is in the ground, and the ground is owned by the landlord.

Moreover, I believe ORS 90.730 (Landlord’s habitability duties) applies in this case. It provides:

 

       (2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord’s habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

      (3) For purposes of this section, a rented space is considered uninhabitable if it substantially lacks:

            (a) 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; (Emphasis added.)

 

The roots of the tree are interfering with the operation of the resident’s sewer system, and you as a landlord have a maintenance obligation “…to the extent that the sewage disposal system can be controlled by the landlord.” 

 

And if the tree is deemed to be a hazard tree because of the damage to the lateral servicing the resident’s space, then ORS 90.730(4), would arguably apply, which provides that the failure to maintain it can constitute a separate habitability violation by the landlord.

 

Conclusion. Unfortunately, it appears to me that: (a) Absent some language in the hazard tree statutes indicating an intent to exclude that root systems, and (b) your statutory habitability duty to maintain the sewage disposal system, a strong case could be made that remediating the damage caused by the tree roots (regardless of whether it’s a “hazard tree” and regardless of whether the resident technically “owns” the lateral – which I doubt) the cost of keeping the system clear of tree roots, is on your shoulders.    

 


[1] Since I was involved with John VanLandingham and others in the drafting of this legislation, I can only speak for myself, but admittedly, it seemed our focus was on the above-ground risks, e.g. toppling trees or branches falling on residents, their homes and automobiles.