ALJDEC

00F-L990022-BFS · Department of Building and Fire Safety · 2000-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2000 APPEARANCES: John and Elizabeth Donaldson, Complainants in their own behalf Ingeborg Cox, Esq., on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The tenant Petitioners (mother and son), and the Respondent Mobile Home Park (Park), entered a rental agreement on June 3, 1994. The Park is located in Tempe, Arizona. 2. The Petitioners’ mobile (manufactured) home is a single wide home but has two additions running along one side. One of the additions is an Arizona room and the other addition is two additional rooms which are currently used as bedrooms. 3. The home is currently on a double wide lot but the Respondent will not allow the home to remain on the double wide lot, if it is sold. Upon sale, the home would have to be moved from the Park or to a single wide lot if available. Presumably the additions could not be used with the home on a single wide lot. For all intents and purposes the home would have to be moved from the Park upon being sold. 4. The rental agreement provides that the use of the premises are for occupancy of the tenants and named residents. There are no named residents aside from the Petitioners. 5. The Park Rules and Regulations in effect at the time of the rental agreement provided that subleasing to a renter was allowed upon condition that both the tenant and the renter signed the rental agreement, the renter must live by the Park rules and regulations, and the tenant is liable for non payment of various fees, costs and attorney fees for charges and damages incurred by the renter. 6. In October 1997, the Petitioners purchased a residence in Tempe Arizona, and moved out of the Park. 7. On November 7, 1997, the Park, the Petitioners, and a renter entered a rental agreement whereby the premises were allowed to be sublet to the renter. The Petitioners’ new residential address is on the rental agreement. 8. The Petitioner, Elizabeth Donaldson, suffers from emphysema which requires oxygen assistance. Her son generally resides with her in order to assist her if the need arises. Aside from her condition, Mrs. Donaldson appears capable of taking care of her own needs. 9. In April 1998, the Park posted a proposed amendments to its Rules and Regulations. The only pertinent amendment concerns the subletting of premises. The amendment required that the rental agreement must be signed by the renter and the tenant “after Park approval”. A copy of the of the proposed amendment was mailed by first class to the Petitioners at their new residential address. 10. The Petitioners deny receiving the proposed amendment. 11. The Park Rule and Regulations with the “after Park approval” amendment became effective in June 1998. 12. From July, 1999 to November, 1999, although no new rental agreement was executed, the premises were sublet to another renter with the knowledge of the Respondent. There is no evidence that the Respondent objected to this. 13. The evidence indicates that the subletting policy has become more stringent within the past year but no new rules have been adopted to indicate the standards for obtaining “Park approval”. 14. After the second renter vacated the home, the Petitioner sent another potential renter to the Respondent who did not approve the renter. Subsequently the Petitioner spoke with someone at the Respondent’s office and was informed that the Respondent no longer permitted subletting. However, the evidence shows that the Respondent still allows subletting under certain circumstances. These circumstances include but are not limited to whether the home is currently in compliance with Park standards, that there are no current violations of any Park rules, a background and credit check (it is unknown what the results of such checks have to be), a minimum income of $1,300.00 for a family of two, hardship issues (hardship is undefined), age and other criteria or standards which are not a specific matter of record. 15. In January, 2000, three males aged 17 and 18 moved into the Petitioners’ manufactured home. There was no rental agreement with the Respondent who has not agreed to this arrangement. Petitioner, John Donaldson, may stay at the home once a month. It is not his primary residence. 16. The Petitioners pay monthly rent and electrical utilities to the Respondent and the three males or their parents reimburse the Petitioners. 17. In February, 2000 there was a complaint by neighbors of the Petitioners’ Park home, and in May, 2000, there was a disturbance at the home which caused the Tempe Police to respond. Conclusions of Law The Petitioners filed their complaint with Department of Building and Fire Safety which issued the Notice of Hearing. The allegations in the Notice of Hearing concern A.R.S. §33-1434, (Landlord to Maintain Fit Premises); A.R.S. §33-1436, (Statement of Policy); A.R.S. §3-1452 (Rules and Regulations); and A.R.S.§33-1454 (Tenant to Occupy and Authority to Sublet). The Petitioners’ primary issue concerns the Respondent’s refusal to allow them to sublet the home. Secondary issues concern the health of Elizabeth Donaldson. 1. No competent evidence was presented which would constitute violations of A.R.S.§§33-1434 or 1436. There is no basis to conclude that the Respondent’s policy regarding subletting falls within the “fit premises” provisions of the statute. The assertion that Mrs. Donaldson, who does not live in the Park, would be adversely impacted because of the refusal of the Respondent to allow the Petitioners to sublet, is not what is contemplated by the cited statutes. 2. The real issue in this case is whether the Petitioners have a right to sublet the home in accordance with A.R.S. §33-1454 and the Respondent’s Rules and Regulations. The relevant statute provides that a tenant may sublet a mobile home upon written agreement with the management. The evidence clearly shows that when the Petitioners first became tenants in 1994, the Respondent’s rules allowed subletting. In 1997 the Respondent entered a rental agreement which allowed the Petitioners to sublet the home. In 1998 the Respondent amended its Rules and added “after Park approval” with respect to subletting. The language adds little to the rule since it merely recapitulates the language of the statute. 3. The issue in the case is straightforward. Whether the Respondent can disallow subletting in its entirety is not relevant in this case. The evidence shows that the Respondent’s Rules and Regulations allow subletting with Park approval. Under pertinent portions of A.R.S. §33- 1452 (A)(3), the rules must apply to all tenants in a fair manner, (A)(4) must be sufficiently explicit in prohibition and direction or limitation to fairly inform a tenant of what is required to comply, and (C) amendments, changes, additions or deletions must be made in writing and furnished to tenants 30 days before becoming effective. First class mail is adequate notice. The fact that the Park will grant approval to subletting under certain circumstances requires the Respondent to properly inform the tenants of the standards which apply in granting such approval. If there are no uniform standards, then the Park approval provision can become totally arbitrary and subject to the whim of the Respondent. If the rule permitting subletting is subject to certain standards over and above the requirements listed in the Park Rule, then with respect to this case, those standards are a part of the rule and should be disclosed and adopted in a manner that satisfies the requirements of (A)(3), (A)(4) and (C) which are referenced above. 4. The Respondent’s concerns regarding non owners residing in the Park are legitimate concerns. However, those concerns must be addressed within the provisions and limitations of the Mobile Home Park Landlord Tenant Act (Act). By categorically denying the Petitioners the right to sublet, the Respondent has not complied with the act. The rights of property owners should not be unnecessarily infringed upon. However, property owners using their property for a commercial purpose and dealing directly with the public are subject to regulation which ensures that the relationship with the public meets certain minimum legal standards. The Act establishes the minimum standards which must be complied with if a property owner as a landlord engages in the business of renting or leasing property to the public as a Residential Mobile Home Park. 5. In view of its past practice and since the Respondent’s Rules and Regulations do not prohibit subletting, the Respondent may not now arbitrarily withhold approval to sublet from the Petitioners. The unpublished criteria which the Respondent relies upon to determine who may or may not sublet, are unenforceable as such, against the Petitioners at the present time. This does not mean that criteria which have a reasonable relationship to legitimate Park Rules and Regulations or Policy Statements, cannot be considered, but only that the criteria in their present form cannot be the sole basis for granting or denying the opportunity to sublet. The criteria or standards must meet the requirements of the statute if they are to have the force and effect of Rules and Regulations. In this case, it is not the function of the Administrative Law Judge (ALJ) to establish standards which the Respondent may impose or consider as part of its approval process. This is a proper function for the Respondent and its counsel. 6. Based on the above conclusions, the Petitioners are presently entitled to sublet the manufactured home under the same qualifying conditions or standards which were in existence or which were considered by the Respondent when the home was sublet in November, 1997. The parties are advised to act in good faith and that absent a specific listing of applicable criteria, and a statement the criteria’s purpose and function, reasonableness is the standard. Nothing in these conclusions is meant to suggest that the current residents (the three young men), at the Petitioners’ home, are properly or improperly residing at the home. This is a matter to be resolved by the parties in the context of the conclusions presented in this Decision. Order In view of the foregoing; It Is Hereby Ordered that the Respondent allow the Petitioners to sublet the manufactured home located at the Respondent’s Residential Mobile Home Park, in a manner which is consistent with the Conclusions of Law set forth above. It Is Further Ordered that by the effective date of the Order entered in this matter, that the Respondent pay to the Petitioner the filing fee required under A.R.S.§41-2198.04 Done this day, May 25, 2000

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Department of Building and Fire Safety N. Eric Borg ATTN: Michelle M. Castaneda East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826