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.
