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The Manual on Uniform Traffic Control Devices (MUTCD) issued by the U.S. Department of Transportation and the Federal Highway Administration specifies the standards for all traffic signs. On both public streets and private property streets on which the public has access, signs must adhere to these standards. Regulatory signs, like stop signs and speed limit signs which are most likely present in your manufactured home community are covered by these rules. Where and how signs must be installed are described in this manual and several rules in particular may affect you and your community. The most recent standards added to the MUTCD specify the minimum height of a stop or speed limit sign and also what materials the sign must be made of.

Here are some important facts that you should be aware of:

• Minimum Height placement of a Stop or Speed limit sign must be 7 ft from the bottom of the sign to the ground.
• Stop signs must be 30" x 30", white letters, and the standard red octagonal shape.
• Speed limit signs must be 24" wide and 30" tall.
• All signs must be made of a high intensity reflective material to ensure nighttime visibility.
• The condition of the signs must be maintained so that they are easy to recognize and read.
• There is more information available on this topic and can be found on the Federal Highway Administration website: www.fhwa.dot.gov or by searching for the keyword MUTCD.

Article provided by Phil and Missy Sapp, Community Managers, Giadanj Estates and Terri Lynne MHPs and Adam Cook, President, Commonwealth Real Estate Services.

Answer: Does the former tenant have issues other than his lack of fiscal responsibility? You could prevent him from being a temporary occupancy based upon prior conduct, etc., but not regarding his failure to pay rent, since "in theory" a temporary occupant is not one who is sharing rent, etc. The statute (ORS 90.275) does not permit you to vet a person's financial/employment status if they want to be a temporary occupant. If the guy has other negative issues, you can decline to put him on a temporary occupancy agreement if they are substantial and material.

The following is a summary of a recent conversation I had with the Fair Housing Council of Oregon on the issue of whether landlords can put "caregivers" on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement (or not putting them on any written agreement - which leaves in doubt their legal status if the Landlord wants them removed from the Community).

1. If the assistance provider doesn'tqualify based on the background check[1] then you don't have to accept them into the Community;
2. If they violate rules of the community when they are already in the Community you can require they leave. (Of course if they are not on an Occupancy Agreement, this could mean removing the tenant if the caregiver refuses to leave, and the tenant doesn'tforce them to do so);

• You can pre-qualify the current tenant as to their need for a care provider, i.e. require a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
• If they can't provide that proof, then you don't have to allow them into the Community as a care provider (although I can't imagine it would be very hard to obtain such proof);
• You have to give the current tenant a choice (assuming the person qualifies under the background check), i.e. they can be on an Occupancy Agreement or go onto a Rental Agreement. You can't automatically say, "OK, you must go on an Occupancy Agreement."
• It is believed that if the tenant understands the risk of allowing the caregiver to be a tenant (i.e. if the caregiver is disruptive, the current tenant may have to leave also), that they will voluntarily opt to put the person on the Occupancy Agreement. (Note: This doesn'taddress the problem where the person doesn'tfinancially qualify to be on the Rental Agreement, but I suspect FHCO would say it's a "reasonable accommodation" by the landlord to waive that financial requirement.) This approach may be slightly unrealistic in those cases in which the tenant wants the caregiver there, and defers to what the caregiver says.

Your alternatives seem to be the following:

• If the current tenant wants them to be a care provider, can he/she establish its legitimacy? If not, you can say no.
• If the current tenant wants them as a temporary occupant, and they have been a problem in the park you can say no; I believe this is so, even though they try to go the care provider route.
• If the current tenant wants them as a "tenant" you can say no because they do not have the financial capacity to pay rent (remember, you couldn'tsay that if they were to be a temporary occupant).
• If you do agree to make them a temporary occupant, have everyone sign the Temporary Occupancy Agreement and put him on a 3 or 6 month term, to see how it goes. You are under no obligation to renew - but if they are serving as a care provider on a Temporary Occupancy Agreement, you'd probably have difficulty not renewing unless there was a specific problem. (But if there was a specific problem, you likely would have already removed them. Getting temporary occupants must be "for cause" e.g. a rules violation, but there is no 30-day right to cure.)

[1] Remember, you cannot require financial capacity if they are to be a temporary occupant, but you can if they are to be a tenant.

Answer:   All good questions. Let’s look at each document.

Changes to the Rules and Regulations. Pursuant to ORS 90.610(3), a landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlords bargain with a resident.  This is done by giving written notice of the proposed rule change, and unless residents of at least 51 percent of the eligible spaces in the facility object in writing within 30 days of the date the notice was served, the change shall become effective for all residents of those spaces on a date not less than 60 days after the date that the notice was served by the landlord.

One resident per eligible space may object to the rule change through either:

• A signed and dated written communication to the landlord; or
• A petition format that is signed and dated by residents of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

If a resident of an eligible space signs both a written communication to the landlord and a petition, or signs more than one written communication or petition, only the latest signature of the resident may be counted.

A proxy may be used only if a resident has a disability that prevents the resident from objecting to the rule or regulation change in writing.

The landlord’s notice of a proposed rule change must be given in the same manner as other notices. See, ORS 90.155 (Service or delivery of written notice) and must include:

• Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change; and
• A statement substantially following the text set forth in subsection 90.610(7)(b)in the following form, with all blank spaces in the notice to be filled in by the landlord:

Unless residents of at least 51 percent of the eligible spaces object, the proposed rule will go into effect on a date that is at least 60 days plus three additional days, if mailed regular first class mail, from the date of mailing.

There are additional provisions of the statute, so owners and managers contemplating a rule change should become familiar with all of them.

Changes to the Statement of Policy.  Every landlord who rents a space for a manufactured dwelling (or floating home) is required to provide a written statement of policy to prospective and existing residents. The purpose of the statement of policy is to provide disclosure of the landlord’s policies to prospective residents and to existing residents who have not previously received a statement of policy. The statement of policy is not a part of the rental agreement.

The statement of policy must contain the following information in summary form:

• The location and approximate size of the space to be rented.
• The federal fair-housing age classification and present zoning that affect the use of the rented space.
• The community policy regarding rent adjustment and a rent history for the space to be rented. The rent history must, at a minimum, show the rent amounts on January 1 of each of the five preceding calendar years or during the length of the landlord’s ownership, leasing or subleasing of the facility, whichever period is shorter.
• The personal property, services and facilities that are provided by the landlord.
• The installation charges that are imposed by the landlord and the installation fees that are imposed by government agencies.
• The community policy regarding rental agreement termination including, but not limited to, park closure.
• The community policy regarding on-site sales.
• The community policy regarding informal dispute resolution.
• The utilities and services that are available, the name of the person furnishing them and the name of the person responsible for payment.
• If a residents association exists, a one-page summary about the association. The residents association is required to provide the summary to the landlord.
• Any community policy requiring removal of a home, including a statement that removal requirements may impact the market value of a home.
• Any facility policy regarding the planting of trees on the rented space.

The rental agreement and rules and regulations are required to be attached as an exhibit to the statement of policy. If the recipient of the statement of policy is an existing resident, the rental agreement attached to the statement of policy must be a copy of the one entered by the landlord and resident.

Here are the delivery requirements:

• Landlords are required to give prospective residents a copy of the statement of policy before the residents sign their rental agreement.
• Existing residents who have not previously received a copy of the statement of policy and who are on month-to-month rental agreements must receive a copy of the statement of policy at the time of a 90-day notice of a rent increase is issued.
• All other existing residents who have not previously received a copy of the statement of policy, a copy of the statement of policy upon the expiration of their rental agreements and before the residents sign new agreements. [Note: This provision refers to residents on fixed term leases.]

As you can see from the above discussion, the statement of policy statute makes no provision for amendment or change.  That isn’t to say it cannot be changed, however.  Assuming that your statement of policy only addresses the required policies listed above, it would be my suggestion that if one or more of those policies change, you should change your statement of policy accordingly, and reissue it to all of the residents. 

For example, assume that your community has held itself out as a family park under federal and state fair housing laws, but in fact, could qualify under the 80% rule as a 55+ park.  Under certain circumstances, by a rule change, it could convert to a 55+ community. In that case, you would want to change your statement of policy accordingly.

As for other changes, either due to Oregon law, or rule changes, if they are not on the required list of items to be addressed in the statement of policy, I see no reason to change the existing statement of policy.  However, if your statement of policy addresses additional items, and one or more of them are impacted by a change in Oregon law or the community rules, I would recommend amending your statement of policy accordingly.

Changes to the Rental Agreement or Lease. Pursuant to ORS 90.510(4) landlords are required to provide a written rental agreement to their residents.  It must be signed by the landlord and resident and may not be unilaterally amended by one of the parties to the contract except by:

• Mutual agreement of the parties;
• Actions taken pursuant to ORS 90.530 (Pets in facilities),90.533 (Conversion of billing method for garbage collection and disposal), 90.537 (Conversion of billing method for utility or service charges), 90.543 (Utility or service charge billing for large manufactured dwelling parks) (3), 90.600 (Increases in rent), 90.725 (Landlord or agent access to rented space) (3)(f) and (7) or 90.727(Maintenance of trees in rented spaces); or
• Those provisions required by changes in statute or ordinance.

The rental agreement must specify:

• The location and approximate size of the rented space;
• The federal fair-housing age classification;
• The rent per month;
• All personal property, services and facilities to be provided by the landlord;
• All security deposits, fees and installation charges imposed by the landlord;
• Any community policy regarding the planting of trees on the rented space;
• Improvements that the resident may or must make to the rental space, including plant materials and landscaping;
• Provisions for dealing with improvements to the rental space at the termination of the tenancy;
• Any conditions the landlord applies in approving a purchaser of a home as a resident in the event the resident elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;
• A provision that the resident may not sell the their home to a person who intends to leave it on the rental space until the landlord has accepted the person as a resident;
• The term of the tenancy;
• The process by which the rental agreement or rules and regulations may be changed; and
• The process by which the landlord or resident shall give notices to each other.

Thus, for those residents in your community on periodic tenancies, e.g. month-to-month rental agreements, you may not change the terms of their contract except in the limited instances listed above.  Clearly, you may do so, if required by statute or ordinance. For the past several years, most changes to Oregon’s manufactured housing rental laws, provide whether the rental agreement may be “unilaterally amended” to accommodate the change.

Note that under ORS 90.545, Oregon law allows “fixed term tenancies” i.e. leases.  Under this law, it is much easier to change all three of the community documents.  Although leases may be not less than two years, at least 60 days prior to the end of the term, the landlord may give the resident a new set of community documents. Although there are certain restrictions found at subsection (3), they are not onerous.  Essentially, you are permitted to give existing residents on lease the same documents as you are currently giving new residents.  You do not have to follow the rule change statute, and do not need permission from the resident to change their rental agreement. The same thing applies to the statement of policy.  It is for this reason that I am a proponent of short term, e.g. two to five year leases; they allow landlords to update their community documents as the laws and regulations change.

Answer: First off, every "reasonable accommodation" case is different, so I strongly recommend that you consult an attorney on your particular case.

As a general matter, HUD has said that landlords must allow emotional support animals if (1) the tenant has a disability, and (2) the tenant documents that an assistance animal is necessary to help alleviate the disability.

In your particular case, it sounds like the tenant managed to convince her doctor's office to provide her with the required documentation of both her disability and the need for an assistance animal. As such, you are probably obligated under federal law to let her to keep the pit bull.

However, one reason for challenging a reasonable accommodation is on the disability diagnosis. In other words, did the tenant's doctor actually make a verifiable diagnosis, or did the tenant just get an online "prescription" without even meeting the tenant? If that is the case, you might consider consulting your attorney on challenging the request since HUD has stated that the tenant must submit reliable documentation of a disability and the need for an assistance animal.

I have also advised clients that it is sometimes possible to remove an assistance animal if it poses a threat to other residents. However, this can' be based on the particular breed of dog, but must instead be based on the attributes of the specific animal in question. For example, if the dog lunged at or attacked another resident, you could likely have it removed.

Along these lines, I recommend that you arrange a meeting with the tenant to "meet" the dog. The purpose (which you can explain to the tenant) is to ensure that her particular dog complies with federal law by not posing a threat to other residents. Assuming the dog does not display any vicious tendencies, it complies and can stay (although any future incidents could lead to a re-evaluation). You can also require her to keep the dog on a leash, clean up after it, and otherwise adhere to any reasonable pet rules you might have. You cannot, however, require any sort of pet deposit or other fee since the dog is considered an assistance animal, not a pet.

A final issue to consider is whether a pit bull in your RV park might cause your insurance rates to rise. If that is the case, you should consult your attorney on whether that rate increase might be considered an undue financial burden on the park. If so, you could possibly deny the pit bull on that basis.

The moral of this question is that each and every reasonable accommodation case is different. Talk to your attorney before denying a tenant's request so that you can avoid a HUD investigation.

A: HB 4038, which has not yet been codified, requires an owner to give written notice of the owner's interest in selling the park before the

owner markets the park for sale or when the owner receives an offer to purchase that the owner intends to consider, whichever occurs

first. If possible, I advise my clients to send the notice before entering into a listing agreement but definitely before actively listing the property.

Q: Does the notice need to be sent to each tenant individually versus all tenants (e.g. "Dear Mr. Johnson" vs. "Dear Tenant")?

A: The plain language of the law states "all tenants," but the 2014 Summary of Legislation states that the purpose of the bill is to require park owners to notify "individual park residents" if the owner is interested in selling the park. Because it appears that the original intent was to notify each individual, the safer course is to send the notice to each tenant individually.

If a tenants committee has been formed, and the purpose of the committee is (in part) to purchase the park, and you have met with the committee in the previous 12 months, you can send a notice to the tenants' committee in lieu of all tenants. Also note that you must send a copy of the notice to the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department (say that 5 times fast).

Q: What does the notice have to include?

A: (1) The owner is selling the park; (2) The tenants, through a tenants committee, have an opportunity to purchase the park; (3) In order to compete to purchase the park, within 10 days after delivery of the notice, the tenants must form (or identify) a single tenants committee for the purpose of purchasing the park and notify the owner in writing of: (a) the tenants' interest in competing to purchase the park; and (b) the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase; (4) The representative of the tenants committee may request financial information described in section 2(2) of the act within the 10 day period; and (5) information about purchasing a park is available from the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department.

Q: Does 10 days really mean 10 days?

A: The law discusses "delivery of the notice." I advise my clients that all notices should be sent by first class mail and 3 days should be allowed for mailing just as if you were sending a 30 day notice or a 72 hour notice. Certificates of Mailing (Not certified mail!!) for each notice are strongly encouraged. By way of example, if you send the notice on June 1, then the "10 days" would run on June 13.

Q: What do the tenants have to do after I send them the notice?

A: If the tenants are interested in competing to purchase the park, within the 10 days, the tenants must notify the owner in writing of their interest in competing to purchase the park, the formation or identification of a single tenants committee formed for the purpose of purchasing the park and the name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

Q: Do I have to give the tenants my tax returns?

A: No. But, during the 10 days of delivery of the notice, and in order to perform a due diligence evaluation of the opportunity to compete to purchase, your tenants may request specific financial information which may include: the asking price, if any (this provision contemplates that you may not yet know your asking price when you send your notice); the total income collected from the park and related profit centers, including storage and laundry, in the 12-month period immediately before delivery of the notice; the cost of all utilities for the park that were paid by the owner in the 12-month period immediately before delivery of the notice; the annual cost of all insurance policies paid by the owner as shown by the most recent premium; the number of homes in the park owned by the owner; and the number of vacant spaces and homes in the park. Please note that I have seen requests that ask for additional information; providing information outside of what is outlined above is discretionary.

Bill Miner is currently Partner in Charge of the Portland office of Davis Wright Tremaine. DWT is a full service law firm with 500 attorneys on both coasts and in Shanghai, China. The Portland office consists of approximately 80 attorneys and over 80 staff. He works with clients to resolve their legal problems through pre-litigation counseling, litigation, and mediation. He tries cases in state and federal courts and through private arbitration. His experience includes defending and prosecuting business torts; breach of contract claims; disputes between and among members of limited liability companies; residential and commercial real estate matters, including landlord-tenant, title, lien, and timber trespass disputes; and probate and trust cases. He is a frequent and popular speaker at MHCO seminars and conferences. You can reach Bill at: http://www.dwt.com/people/WilliamDMiner/

Bill Miner | Davis Wright Tremaine LLP1300 SW Fifth Avenue, Suite 2300 | Portland, OR 97201Tel: (503) 778-5477 | Fax: (503) 778-5299 Email: billminer@dwt.com | Website: www.dwt.comAnchorage | Bellevue | Los Angeles | New York | Portland | San Francisco | Seattle | Shanghai | Washington, D.C.

Answer: This is a good question, and all too frequently ignored by owners and managers. The first question is whether the issue is addressed anywhere in the community documents, i.e. the statement of policy, rules, or rental agreement. Likely not. It really isn'taddressed in the Oregon Residential Landlord-Tenant Act, with the exception of ORS 90.222, which covers renter's liability insurance, and is excluded from the manufactured housing section of the law.

Strictly speaking, the fact that the home was destroyed and is likely uninhabitable does not make it any less of a resident responsibility than before the fire. In other words, it is the resident's primary responsibility to either promptly repair, replace, or remove the home. The space is still under lease or rental to the resident, so all of the same rules apply, i.e. to keep it in good condition and safe. If the home is nothing more than a shell, the resident should likely remove it as soon as possible.

If the resident does not have fire insurance to repair or replace the home, I suspect he or she will abandon it, thus making it your problem - or the problem of the lienholder if there is one. Incidentally, if there is a lienholder, the loan documents likely require fire insurance, and that it be a named insured on the policy. If that is the case, then hopefully, between the resident and their insurance company, there may be available proceeds to repair or replace.[1]

If the resident abandons the home, you should immediately send out a 45-day abandonment letter, thus triggering your right (and duty) to take control of the personal property. It is likely an attractive nuisance for children, which could result in injury to them, and liability to you. In such case, you should consider having it either cordoned off with "No Trespassing" signs, or removed. Make sure that you independently confirm that it is a total loss, and with no salvage value. If there is salvage value, it belongs to the resident.

[1] Note that the MHCO Rental and Lease Agreements do have a provision for the resident to maintain fire insurance, but it is optional, and applies only if the box is checked. This situation should be a cautionary tale for owners and managers requiring such insurance, with proof that it is being maintained.

Answer: First, there is nothing in the Oregon Residential landlord-tenant law directly on point. Nor would I expected there to be, any more than a law prohibiting residents from intentionally defacing community property. It just goes without saying.

Looking for a remedial statute for recourse, however, is not difficult.

Check your community rules to see what they say. While I would not expect there to be a direct prohibition against wasting water, there very well be something that comes close to the point.[1] If there is some provision in your rules that you can point to, then you could use a 30-day notice of termination under ORS 90.630.

However, I'm not sure you want to permit the resident 30 days to cure. Under these circumstances, you might want to resort to the non-curable 24-hour notice statute, ORS 90.396(1)(f), for outrageous conduct. While it is true that landlords and managers should not use the 24-hour notice if a 30-day curable notice would suffice. Accordingly, I would suggest that before resorting to the 24-hour statute, you "paper your file" by giving him a written warning notice, say seven days in advance, telling him what you will do if he does not stop. If he continues to flagrantly waste the community water, then file the 24 hour notice and let the judge decide. I suspect he or she will come down on your side of the issue.

Also, keep in mind that if you are forced to issue the 24-hour notice and go to court, at the first appearance, the court will encourage both parties to resolve the matter. In this situation, if the resident agrees to stop wasting water, then have him enter into a Stipulated Judgment of Restitution (which is prepared by the judge at the time of the first appearance), which would give you the ability to go back to court quickly (without having to file again), to evict should he violate the agreement.

There are other statutes that come into play here, although their violation would only give you a right to issue a 30-day curable notice of termination:

• ORS 90.740(3) (Tenant Obligations) provides that a tenant shall: "Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenant's behavior as a tenant."

While this provision requires you to look elsewhere (e.g. the rental agreement, laws, rules and ordinances), I suspect checking with your local water bureau, you will find certain water conservation rules and regulations that prohibit intentional waste of public water.

• ORS 90.740(4)(a) (Tenant obligations) also provides that a tenant shall: "Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;"

Again, this provision is not directly on point, I think we can agree that that intentional waste of water is not a "reasonable" use of the rented space. Moreover, ORS 90.130 (Obligation of good faith) helps out here, since it clarifies that "Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement."

[1] In briefly looking over the MHCO agreement I do not see language directly on point.

Is your entrance neat and welcoming with well landscaped signage projecting the property's IDEAL image to Residents and future Residents?

• Are your common "green" areas free of weeds, edged, fertilized and looking crisp and clean? We must always lead by example!!!!
• Do all of your buildings have a neat appearance with exposed wood painted, and windows washed? REMEMBER: If you expect this of your Residents, then as Owner/Manager you must set the standard...no one respects a hypocrite!!!!
• If your streets have speed bumps, are they freshly painted so they are not trip hazards?
• When was the last time your catch-basins were cleaned of debris?
• If your MHC is on a private septic system, how current is your pumping schedule and have YOU physically inspected each tank and field for possible shed, fence,
• deck or landscape encroachments?
• Have you reviewed your vacant space inventory and matched it with available
• homes on various web sites/local realtors multiple listing sites/Craig's lists etc? Have you made an offer on any homes and have you contacted any movers to get bids on hauling/setting the home at/to your MHC?
• Is your MHC's business Information Center (aka "Office") the jewel in your crown as a neat, clean and available place to conduct business according to posted hours for Residents?
• Have you or your attorney reviewed lease files space by space to be assured that each Resident's documents are current with legislative and/or "case law" changes?

This very abbreviated list only begins to scratch the surface of what you must do to conquer all the obstacles that stand in your way of being exemplary MHC administrators. Let us be fierce in the desire and follow-through to make MHCs the best they can be for our Residents. In so doing they will provide security for our families' future income!

Joel Erlitz, President
First Commercial Property Corp.
Jserlitz@aol.com
206-985-7275(PARK)

ORS 90.675 is the abandonment law that applies generally to homes located in manufactured housing communities. Today it contains 23 separate subsections, a behemoth in size compared to most statutes. Buried 21 sections down in the subterranean recesses of the statute is that portion of the law dealing with health, safety and welfare issues, in which 45 day letters and 30 response periods could not possibly work. In such situations, time is of the essence. Accordingly, subsection 21 sets forth a fast-track protocol for declaring the abandonment of a home that poses certain risks to others (such as the abandoned shell of a home destroyed by fire). Below is a summary of what this subsection says:

If a governmental agency determines that the condition of the abandoned home constitutes an extreme health or safety hazard under state or local law and the agency determines that the hazard endangers others in the facility and requires quick removal of the property, the landlord may sell or dispose of it by taking the following steps[1]:

• The date by which a tenant, lienholder, personal representative or designated person must contact a landlord to arrange for the disposition of the property shall not be less than 15 days after personal delivery or mailing of the abandonment letter required by ORS 90.675(3);
• The date by which a tenant, lienholder, personal representative or designated person must remove the property must be not less than seven (7) days after the date the tenant, lienholder, personal representative or designated person issues the abandonment letter;
• The contents of the abandonment letter must be in accordance with ORS 90.675(5), except that:
  • The dates and deadlines in the notice must be consistent with the fast-track protocol above;
  • The abandonment letter must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and
  • The landlord must attach a copy of the agency's determination to the abandonment letter.
  • If the tenant, a lienholder or a personal representative or designated person does not remove the property within the time required under the abandonment letter, the landlord or a buyer at a sale conducted under ORS 90.675(11) must promptly remove the home from the facility.
  • Contrary to ORS 90.675(19), the landlord is not required to enter into a storage agreement with a lienholder, personal representative or designated person.

Thanks, John!

[1] Note: the following steps are exceptions to the rest of ORS 90.675. This means that if there is no exception in this list, the rest of the statute will apply.

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.