ALJDEC

02F-L002001-BFS · Department of Building and Fire Safety · 2001-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 17, 2001 APPEARANCES: John T. Havens, Petitioner, in his own behalf Jerry Riley, in his own behalf Michael Parham, Esq. on behalf of the Respondents ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ For the purpose of this Decision, the three Respondents in this case shall be referred to in the singular. The facts of the case did not present a basis to differentiate among the Respondents, and their relationship appears to be such that a finding and conclusion as to one, is applicable to all. Findings of Fact 1. On June 5, 1998, the Petitioner, John Havens (Havens), signed the Respondent’s (Bonaventure Mobile Home Park) rental agreement (Exhibit 1). The Petitioner had previously been a tenant at the Respondent mobile home park and had also been an intermittent resident since approximately 1979. 2. Included in paragraph 6 of the rental agreement was a provision that the tenant would make repairs when necessary to maintain the mobile home at the standards set forth in the rules and regulations. 3. On June 5, 1998, Havens also signed a copy of the Respondent’s rules and regulations (Exhibit 2). Section C.7 of the rules and regulations provides that “The tenant shall maintain all lawns, trees, shrubs and other landscaping in a reasonable manner.” 4. The lot for which the Petitioner signed the rental agreement had been rented by the Petitioner’s sister in the 1980’s and 90’s, and as previously stated, the Petitioner resided there intermittently. 5. In September, 1999, the Respondent amended the rules and regulations. The relevant portion pertaining to trees and shrubs requires dead or dry palm fronds to be removed yearly to prevent fire hazards. The Petitioner testified he did not receive the amended rules and regulations. 6. The Petitioner received approximately nine notices between October, 1998 and June, 2001, from the Respondent, to correct conditions on the mobile home lot. In December, 1999, the parties settled an eviction dispute in court. 7. On June 26, 2001, the Petitioner was sent a 14/30 Notice of Termination of Rental Agreement (Termination Notice) for violation of rules . The Termination Notice alleged that debris was around the patio and shed areas, a fence needed repair, trees and shrubs needed trimming, oil pans needed to be replaced, the front of home needed landscaping, the home and water cooler needed painting, bent awning support needed replacing, replace broken lattice in driveway, paint wood lattice in driveway, remove wood lattice on patio, and reinstall broken scallops. 8. The majority of the issues mentioned by the Respondent in the Termination Notice, including the condition of the Petitioner’s lattice work, toys on the lawn, materials behind the storage shed, grass behind the trailer, materials on the patio and metal drip pans in the driveway have apparently been taken care of by the Petitioner and are no longer a dispute between the parties. 9. There are eight palm trees on the lot being rented by the Petitioner. The only remaining significant issue is the interpretation and application of the provision for the maintenance of trees on the tenant’s lot and whether any of the Respondent’s actions have been in violation of the cited statutory provisions. 10. Co-Petitioners Jerry and Shauna Riley have a similar maintenance question with respect to a large mulberry tree which is partially on their lot and partially on two other lots. According to the Rileys, they were told by park management that they were responsible for the maintenance of those portions of the mulberry tree which were not on their lot. The Rileys’ interest in the hearing is to obtain clarification of their responsibility for the mulberry tree. Conclusions of Law Based on the Petitioner’s complaint, the Notice of Hearing alleges violations of A.R.S. §33-1452(A), which provides in pertinent that rules are enforceable against tenants only if (4), they are sufficiently explicit to inform a tenant of what must or must not be done to comply; (5), are not for the purpose of evading the obligations of the landlord; (C), a tenant shall be given 30 days notice of changes in the rules; deceptive and unfair rules are unenforceable, post rental agreement rules cannot constitute a substantial modification of the rental agreement; (D)(6), the owner- operator of a mobile home park shall not require a tenant to provide permanent improvements which cannot be removed without damage to the improvement or mobile home space; (G), improvements made by the tenant for the benefit of the tenancy may be removed by the tenant or agreement, or may be retained and paid for by the landlord. A.R.S. §33-1434 requires the landlord to keep the premises in a fit and habitable condition. A.R.S. §33-1451(A) requires a tenant to exercise diligence to maintain the part of the mobile home park premises the tenant has rented, in as good condition as when the tenant took possession. A.R.S. §33-1409(22) defines “premises” as the mobile home park and its existing facilities, appurtenances, including furniture and utilities where applicable, and grounds, areas and existing facilities for the use of tenants generally or whose use is promised to the tenant. 1. It is concluded that the term “premises” as used in the A.R.S. §33-1434 refers to the common areas of a mobile home park and not the individual lots which are rented by a tenant. Any other construction would require the landlord to come onto the tenant’s lot for multiple maintenance purposes (trimming grass, cleaning up, removing foliage from windows etc.), which could be considered a trespass or invasion of privacy. A.R.S. §33-1451 clearly provides that the tenant is responsible for maintaining the mobile home space. Furthermore, absent clear language or some compelling reason to the contrary, the law should be construed to allow parties freedom to enter agreements with respect to who shall be responsible for the maintenance of rented or occupied lots. This is accomplished through the rental agreement and the rules and regulations of the mobile home park. 2. Initially the Petitioner did not recall having received and signing the rules and regulations on June 25, 1998. Petitioner subsequently acknowledged his mistake but asserts that he did not receive the amended rules and regulations of September, 1999. Respondent asserts that amended rules and regulations were sent to the Petitioner in September 1999. In any case, the rules and regulations which were signed by the Petitioner in 1998, provide that the tenant shall maintain the trees in a “reasonable manner”. The 1999 amended rules and regulations seem to clarify this by requiring the removal of dry and dead palm fronds yearly to protect against fire hazards. 3. The Petitioner testified that the Respondent has at times taken it upon itself to trim trees. No competent evidence was presented to show that the Respondent gratuitously trimmed the trees on rented and occupied lots. The Petitioner acknowledged that a friend last trimmed the Petitioner’s palms. This indicates that the Petitioner had some understanding of his responsibility in this area. The testimony that the Petitioner’s friend trimmed the trees as a favor does not alter this conclusion. 4. The photographic evidence shows that at least some of the Petitioner’s palm trees as well as palm trees on other lots have dead fronds. It is unknown if the other lots were vacant or rented at the time of the photographs. There is no credible evidence that the Petitioner is being treated differently than other tenants. 5. Based on the testimony, and the photographic and documentary evidence, it is concluded that the amended rules and regulations regarding the trimming of palm fronds are sufficiently explicit and do not appear to be an attempt by the Respondent to evade its obligations. However, the rules and regulations which were signed by the Petitioner are somewhat more vague because they merely state that trees had to be maintained in a “reasonable manner”. This standard is rather broad and does not set any objective standard for minimal compliance. To the extent that the 1998 rules and regulations did not satisfactorily establish a standard for what constituted “reasonable manner” they were not sufficiently explicit. The amended rules and regulations which state that dry and dead palm fronds require yearly removal are sufficiently explicit. There is no violation of A.R.S. §33-1452(A)(4) and (5). 6. The evidence regarding the 30 day notice to the Petitioner, of the amended rules and regulations, is conflicting. The Respondent did not make a formal presentation of its case in response to the Petitioner’s evidence. There was no particularized evidence that the amended rules and regulations were served on or sent to the Petitioner by first class mail (no mailing list or other documentary confirmation showing to whom and how notice was given). However, the evidence indicates that the 1999 amended rules and regulations were sent to park tenants (this presumably included the Petitioner). The evidence also shows that the Petitioner did not recall the fact that he had signed a copy of the prior rules and regulations when entering the rental agreement. The evidence on this issue is insufficient to conclude whether notice was properly given to the Petitioner. The evidence was also insufficient to conclude that the notice was not properly given. In this case the Petitioner has the burden of proof under A.A.C. R2-19-119. The Petitioner failed to meet his burden. The rules and regulations are not found to be deceptive or unfair. There is insufficient evidence to establish a violation of A.R.S. §33-1452(C). 7. There was no violation of A.R.S.§33-1452(D)(6) and (G) because there is no competent evidence that the Petitioner was required to provide permanent improvements which could not be removed (that the Petitioner had been required to plant the trees) or that the Petitioner wanted to remove any permanent improvements. A.R.S.§33-1452(G) clearly shows that plants care considered permanent improvements. The Petitioner raised the question of whether the required maintenance of an improvement would not at some point establish ownership. The question is not directly before this Administrative Law Judge (ALJ) because there was no issue of whether the Petitioner wanted to take the offending palms with him or otherwise treat them as his property. The case shows that the palms were the Respondent’s property at the time the Petitioner entered the rental agreement. Knowing this, since the Petitioner had lived on the lot over the years, placed the Petitioner on notice that the palms were there. The rental agreement and rules and regulations clearly place the maintenance responsibility on the Petitioner. That the Petitioner was required to reasonably maintain the palms does not cause a change in ownership. 8. The Rileys trimmed the mulberry tree including the part that was not on their property. Their purpose at the hearing is basically seeking a decision on an issue which was not presently in actual controversy. This is akin to a declaratory judgment in a civil court. Generally, a declaratory judgment is issued under specific circumstances where there is an actual controversy between parties. It is not an advisory judgment nor should it address abstract or moot issues (see Notes of Decisions 6- to A.R.S.§12-1831). In this case the Respondent did not disagree with the general principle which is that the Rileys should only be held responsible for those portions of the mulberry tree which are on, or overhang their lot. Other than this, no further discussion is merited on this particular issue. Decision In view of the foregoing and pursuant to the authority of A.R.S. §41- 2198.02 it is ordered that the allegations of violation cited in the Notice of Hearing be dismissed against the Respondents Bonaventure Mobile Home Community, Harvey Miller and Sherry Childreth.

Done this day, October 2, 2001

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

-----------------------

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