MHCO Columns

Phil Querin Q&A: Fences, Damage, and Landlord Liability

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Phil Querin


Question. I am looking for information dealing with fence liability between landlords and tenants, and between tenants and other tenants.

Our Park Management has not put up any fences. All fences were installed by current and past tenants. Generally, my questions relate to the duty to maintain these fences, liability from trees (hazard and otherwise), and repair issues and fences that were installed by past vs. current tenants.


Answer:  This is a very broad question, which is why the answer will have to be general. What follows are some of the major issues that occur. In all cases, the best protection for Management is to make sure these issues are addressed either in the Rental Agreement or the Rules – and then make sure they are enforced in a timely manner.


What Does the Rental  Agreement Say?  The MHCO Rental Agreement provides that a tenant may not “erect additional structures (attached or detached), including but not limited to fencing, steps, or decks, to the exterior of the Home or anywhere upon the Space (hereinafter “Construction”) without LANDLORD’S prior written approval.”

This imposes a duty on management to be vigilant. If an unpermitted fence goes up and is allowed to remain without oversight, it could result in waiver issues for the landlord.

Management must be proactive and require that any recently unpermitted fences be vetted in accordance with Section 7 of the MHCO Rental Agreement (Improvement to Rental Space or Home).  They should either be made to conform to all applicable laws and codes or removed.


Preexisting Fences/Structures. Again, vigilance is the watchword. Before permitting an owner to sell their home, landlord should make sure that there are no structures out of conformance with all codes and laws. This can be reasonably easy to do, especially if it is covered in the Park Rules dealing with obtaining landlords consent to sell. Using ORS 90.632 (Termination/Deterioration of Home) unfortunately, does not directly apply because it pertains only to homes.


However, landlords can craft a rule change that would accomplish the same result for all fences or other structures on the space which were either installed by the tenant or existed at the time of purchase of the home. Like ORS 90.632, the notice could be made transferable and imposed upon the new tenant/buyer if he/she agrees. This would then be  something the existing homeowner could negotiate with the new buyer as a part of the sale. In this manner noncompliant fences, etc. can be corrected.


What About Pre-existing Fences at Time of Park Purchase?  In my opinion, this is a due diligence item for Park purchasers to attend to. Unfortunately, I have seen many instances of where it is not done; thus the problem gets ignored until something occurs, such as an argument between tenants as to who has the duty to maintain.  Is the fence even located where it should be? Upon park purchase, landlords should consider vetting the issue between the tenants who border the fence.  Who maintains? What do the Rules say?


Going forward, this is a significant issue for landlords to consider when amending their rules. In a perfect world, the new rule should address maintenance responsibility. The easiest solution is a shared liability between bordering tenants – assuming that the fence was there when all tenants purchased their homes. If one tenant unilaterally installed a fence (benefiting both adjoining tenants) the issue becomes whether the tenant who did not construct or ask for the fence should have to pay. (Note to Landlord: This is what happens when the new fence construction is ignored and allowed to remain without resolving the issue at or before construction.)

This might be something that mandatory mediation under ORS 90.767 could address.


Park Installed Fences. Clearly, these are the landlord’s duty to maintain, even if they were installed before Park purchase. One issue, however, is that Park purchasers should make sure the preexisting fences are on or near the correct boundary lines. Tip: The older the fence, the greater the likelihood it needs to be surveyed as a condition of purchase.


Tree Damage to Fences. Tenants are, by statute, required to maintain and water trees, includingcleanup and removal of fallen branches and leaves, on the rented space - except for hazard trees. “Maintaining a  tree” means removing or  trimming a  tree  for  the  purpose  of eliminatingfeatures of the  tree  that  cause the  tree  to  be hazardous, or  that  may  cause  the  tree tobecome hazardous in  the  near  future. “Removing a tree”  includes felling it, removing it, and  grinding or removing the stump of the tree.


But for damage to fences, ultimately the issue goes back to whose fence it is and who has maintenance and repair duties. This may not be addressed in the rental agreement or rules. But it could be by a rule change.


The Take-Away. As a rule of thumb, the landlord is in the best position to deal with these issues proactively. This can be done by a good rental agreement such as the MHCO form, plus implementing rules to address fences. Oregon law permits amending the rules even if they alter the bargain at the inception of the tenant’s tenancy. (Check with your lawyer first!)


But the bottom line is that in the event a fence has been allowed to remain between tenants’ spaces with no landlord involvement, the damaged fence should be repaired. If the tenants cannot or will not agree, it will likely become management’s responsibility, because it could have been addressed originally, but was  not.