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

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October 19, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

 

Question: A park we manage has a tree on one of the lots whose roots are damaging the home owner’s driveway, and the neighbor’s driveway.  In addition, it is also damaging the skirt of the home owner’s residence. Our park rules say that all plants, including trees on a lot, are the responsibility of the home owner who is leasing the lot.  The home owners are also responsible for installing and maintaining their driveways and carports. We had an arborist come out and assess the tree and it is not currently a
“hazard tree”.  The arborist advised against cutting the roots that are damaging the driveways as the tree would then lack adequate support and become a hazard tree.  The question is, what responsibility, if any, does the Park owner have for the tree and or driveway damage?  I am particularly wondering if ORS 90.730 (3)(g) has any relevance.

 

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.