ALJDEC

02F-L002005(2)-BFS · Department of Building and Fire Safety · 2002-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2002 APPEARANCES: David and Elizabeth Hamilton, Complainants, represented themselves. Michael Parham, Esq., appeared on behalf of the Respondents. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. In the summer of 2000, the Petitioners were visiting and looking for a mobile home park in the Phoenix area. 2. They were told by a mobile home dealer that the Respondent Mobile Home Park, Boardwalk Estates (Boardwalk) was an outstanding mobile home park. Boardwalk has been in existence less than two years and had well under 50% occupancy when it was viewed by the Petitioners. Boardwalk is a family park which apparently has a significant working class population. It was described as “lower income” although the income standards for such terminology were not established. Currently 47 of 115 homesites are occupied. 3. The Petitioners drove through Boardwalk and submitted an application for tenancy. They also picked up a copy of the Boardwalk Standards For Living which are the rules and regulations for the park. At this time, Boardwalk was being managed by Dennis and Diane Hounsom (Hounsom). 4. The Petitioners were informed that their application was accepted by Boardwalk. They had not yet entered a rental agreement. The Petitioners purchased a four bedroom, double wide mobile home from Alpha Homes, Inc., in late July 2000. The home was set up at Boardwalk while the Petitioners were still in California. 5. Upon returning to Arizona in mid August, 2000, the Petitioners moved into their home. At this time, Boardwalk had a new manager, Malcomb Brown (Brown). The Petitioners still did not have a signed rental agreement. In addition, they did not have all the documentation which according to statute, is to accompany a rental agreement. It appears that Brown being relatively new to the job, was unaware that all the paperwork had not been completed in this case. 6. In early October, 2000, Petitioner (Mrs. Hamilton), signed a rental agreement. However, Mr. Hamilton objected to paragraph 16 which provided that the Petitioners had inspected the park and found it to be in a safe, clean and in good condition. The Petitioners kept the rental agreement and went to the extent of “whiting out” Mrs. Hamilton’s signature. 7. The reasons for the Petitioners’ changed perception of the park forms the basis of their complaint. Essentially they believe that the park rules and regulations are not enforced by Boardwalk and Brown, and that they were somewhat misled with respect to the nature of the park. In general, the items which concern the Petitioners are numerous. These will be mentioned generally in the Findings of Fact and then discussed specifically in the Conclusions of Law. They include the assertions that numerous tenants have not been required to landscape their lots, that the landscape material is not consistent with what the rule requires, that tenants with dogs (including Brown) have not been required to put up a fence, and that tenants are not required to maintain their lots in conformance with the rules (limits on outside materials, furniture and appearance, etc.). The Petitioners contend that the appearance and the quality of living in the park is diminished by the failure of management to enforce its own rules. 8. Another complaint concerns the Petitioners having replaced a gas range in their mobile home with an electric range. The park brochure lists Boardwalk as an “all electric park”. The Petitioners and their manufactured home dealer took this to mean that gas or propane ranges could not be used and changed the range in the Petitioners’ home to an electric range. Subsequently the Petitioners learned that tenants could get waivers in order to use propane appliances. The waiver provision had been only recently instituted. The evidence does not establish the Respondent actively misled the Petitioners. Some inquiry about the meaning of “all electric park” might have resolved the issue before the change was made. Possibly the brochure should be modified to show that propane waivers can be obtained. 9. The Petitioners also assert that management has brochures for sun shades available when use of such shades in the park is contrary to the rules. There was no evidence that shades were being used in contravention of the park rules and the brochure issue is therefore a non issue although if the assertion is true, the logic of having the brochures in the park office escapes this Administrative Law Judge (ALJ). 10. The Petitioners asserted and the evidence showed that some vegetation grew in excess of certain Crime Free Housing Standards adopted by rules governing Homesite Maintenance and Use, paragraph A, which require bushes no higher than three feet and the vegetative portion of trees no lower than five feet. The vegetation has since been trimmed. The photographic evidence which indicated that some vegetation was not in compliance did not show the non compliance to be egregious. 11. The documentation which was not given to the Petitioners at the inception of their tenancy was provided at the hearing or has otherwise been obtained by the Petitioners. The Petitioners are holding the rental agreement and by “whiting out” the signature of Mrs. Hamilton, apparently do not agree to its terms and may well be on a month to month tenancy under A.R.S. §33-1433(H). This latter issue does not require resolution as part of this complaint. Conclusions of Law The Petitioners have alleged numerous violations under various statutory provisions of the Mobile Home Parks Residential Landlord Tenant Act (the Act). Each allegation will be addressed in such detail as is required to make an informed decision. Allegations of violation of A.R.S. 33-1402 are not properly made because the statutory section is merely a statement of the purpose of the Act and not a section which requires or prohibits specific conduct. The purpose clause does not establish standards which are subject to violation. The citing of this section is not applicable to this case in determining whether there has been a violation of the Act. The same reasoning applies to the allegations of violations of A.R.S. §33-1403 which section provides that various legal and equitable principles supplement the Act. Again there are no specific standards, requirements or prohibitions in the section which would be the subject of violations. The citing of this section is not applicable to this case in determining whether there has been a violation of the Act. Other statutory sections which are cited by the Petitioners as having been violated include: 1. A.R.S §33-1413 (A), the required execution of the rental agreement. The Petitioners have whited out the signature of Mrs. Hamilton on the previously signed rental agreement and have not executed a new agreement. The Respondent is not in violation based on the Petitioners failure to act. With respect to A.R.S. §33- 1413(D)(1),(2) and (3), a statement signed by the tenant acknowledging receipt of the disclosures required under A.R.S. §33- 1432 was not attached to the rental agreement. It is acknowledged that the Respondent may not have provided all the documentation required but the evidence shows that Brown may not have been aware that the Petitioners did not have the information. In addition, the Petitioners never informed Brown they did not have the information nor did they ask him to provide it prior to filing their complaint. The law presumes that persons will generally make reasonable attempts to rectify matters that can be readily corrected before invoking governmental action. In any event, the Respondent provided a copy of the Act, Policy Statement, and Rent Increase Statement during the hearing. The Petitioners already have the rules for the park. It also appears that the Petitioners have the information required by A.R.S. §33-1432 in that no specific evidence was presented as to what specific required information remained undisclosed. The citation to A.R.S.§33-1413(J) is not sustained. No evidence was presented to show that the Petitioners were required to make improvements which exceeded the requirements of park rules. 2. The citation as to A.R.S.§33-1432(A)(4), was addressed in the hearing and the applicable rent history was provided. With respect to A.R.S. §33-1432(G), it is unknown if the Petitioners have received the Secretary of State published Residential Landlord and Tenant Act booklet. However it is evident the Petitioners are informed of the specifics of the Act in view of the complaint filed in this case and the presentation of their case. The issue is essentially moot. 3. A.R.S. §1434(B) provides that the landlord shall not restrict the tenant’s choice of fuel. The conclusion on this issue is that the Petitioners were not required to change the range that came with their home nor were they deprived of the opportunity to use propane. As with a number of other issues, an inquiry regarding the matter, rather than sole reliance on the brochure or on a salesman’s statements, could have avoided the problem. There is no violation on this issue. 4. The Petitioners were provided a copy of the statement of policy for the park at the hearing. The allegation as to A.R.S.§33-1436(A) is moot. 5. With respect to A.R.S. §33-1437(B), the park manager has to post proof or identify the place of posting of proof of completion of educational programs relating to managing a mobile home park. Brown testified he had completed the educational requirements but no evidence was presented that the proof of completion was conspicuously posted at the park. The Petitioners (Mrs. Hamilton), testified she had looked for the proof but had not been able to locate it. 6. The Petitioners also cite A.R.S.§33-1451(A)(2), (3) and (5). The statutory provisions in A.R.S.§33-1451 relate to tenant obligations. The general statutory requirement is that tenants must comply with legal and other general standards relating to health, safety, cleanliness, nuisance and so forth. The statute does not have direct application in this case and therefore no violation is found. 7. The provisions of A.R.S.§33-1452(A)(3),(4),(6), as cited in the Notice of Hearing, are also in Article 3 (Tenant Obligations). Of necessity, the provisions relate to the Respondent as well as the Petitioners. The cited provisions of A.R.S. §33-1452(A) are specific. The words, ” A. A landlord shall…”, are compulsory and not permissive. The limitations on the enforceability of the park rules require that under (A)(3), the rules apply to all tenants in a fair manner. The evidence shows that this provision has not been complied with in regard to dogs and fences. Brown’s “tea cup dog” reference is somewhat cavalier and not given any consideration. The evidence was substantial that a some tenants (including the manager Brown), have dogs running unrestrained and no adequate fencing of their lots. The park is required to actively, reasonably and fairly enforce its rule (Standards for Incoming Manufactured Homes, paragraph H). There is no exception based on financial hardship. A reasonable time (30 days), is allowed by the rule, for placement of a fence. Ample time has passed and the evidence shows (the Complainants’ testimony not having been refuted), that no serious effort is being made to require complete compliance with the rule. The evidence also shows that the park is not actively enforcing the provisions regarding landscaping (Standards for Incoming Manufactured Homes, paragraph I). The cost of the “Desert Rose” rock is modest and enough time has passed to require tenants to landscape with Desert Rose or an equal or superior product. The issue of whether Desert Rose falls within the meaning of colored landscape rock or quarter inch minus gravel, will be discussed later in this Decision. Exhibit B shows numerous examples of non compliance with the rules by other tenants. The fifth wheel rule is fairly clear (Vehicles and Parking, paragraph F). It provides fifth wheels may not be parked “…anywhere in the Community.” Brown testified that the park is a Mobile Home and RV park. No satisfactory facts were presented or cogent argument made, that would support this conclusory assertion by Brown or that the designated RV spaces were not a part of the Community as the term is defined and used in the applicable rule. Based on the evidence, the Respondent is not enforcing its rule on this issue. This also applies to the “for sale” sign in #49 Exhibit B. The fact that the owner of the park may be selling a home should not exempt it from the Respondent’s own rule for Sale of Manufactured Homes, paragraph A. There is nothing in the rule which limits its application to tenants in light of the stated purpose of the rules being “…to maintain the appearance and high standards of our Community.” Homesite Rental, paragraph I, Definitions: defines “Community” as “…owners, agents and Managers of the Community” . It is concluded that the depicted sign does not meet the requirements of the rule and the park is in violation of the spirit and intent of (A)(3), for failing to apply the rules to all tenants in a fair manner. An unambiguous violation is not proven because the Owner was not shown to be a “tenant” as defined by A.R.S. §33-1409(29). However, absent some explanation, it would make a mockery of the law and its intended purpose, to allow management/ownership to directly violate the rules of the park in derogation of the tenant’s rights under the rules. Such an interpretation is not an imposition on the Respondent’s property rights but merely an upholding of the tenant’s property rights which are paid for with rental fees in light of the what is purported by the Respondent’s own rules. One can argue that under the definition, when ownership has a mobile home occupying a mobile home space, the landlord is subject to the same rules which apply to a tenant. With regard to the landlord arguing exemption or non applicability of the rules, without giving specific notice to tenants, one could also raise the issue of unconscionability set forth in A.R.S.33-1411. 8. Under A.R.S. §33-1452(A)(4), the rules must be explicit in their prohibitions, direction or limitation. The Petitioners did not clearly establish how the Respondent failed to do what was required under this provision although the failure to adequately enforce the rules could arguably be construed as a lack of clarity. In this case the rules which have been raised are sufficiently clear (with the exception of the Desert Rose landscape material which is discussed in paragraph 12 of these conclusions), with respect to the issues under consideration. Under (A)(6), the tenant is to have a copy of the rules before entering the rental agreement. The evidence shows that the Petitioners had a copy of the rules (Standards for Living) prior to receiving the rental agreement (as previously stated there is a potential issue as to whether the Petitioners have entered the rental agreement-Exhibit D). 9. The rules provide for a waiver of the parking of more than two vehicles and this issue was not shown to have been ignored by the Respondent. Nor was it shown that the waiver was improperly granted. It is noted that the Petitioners have themselves been the recipients of a landscaping waiver. However the granting of waivers cannot be done by whim or varying personal disposition, but must be governed by some established criteria which is made known to the tenants. 10. Other complained of issues such as inoperable vehicles, repair of vehicles, unauthorized parking, temporary and uncovered outdoor steps, unauthorized furniture or other items outside the home, driveway oil, weeds and debris, pet droppings, placement of utility connections, trespassing, playing in the street and climbing of the perimeter fence by children, bent awning supports, general unkempt and unsightly exterior appearance of lots were shown in Exhibit B. The Petitioner’s concern regarding the condition of the park is understandable but the Petitioners are reminded that management can only take reasonable action with respect to rule violations. It is only if management makes no good faith or effectual effort to obtain compliance with the rules that the failure to obtain the desired result will necessarily result in a violation. The determination of management’s intent and effort must be obtained from the totality of the evidence and not isolated observations. The evidence shows that some tenants have been evicted. It is unknown if that was the consequence of rule violations or for other reasons. The fact is that community standards will vary according to innumerable variables including whether the community is a family park or an over 55 park, affluent or working class, old or new etc. There are no hard and fast rules which establish a precise definition for conceptual and subjective terms such as “outstanding quality”, “comfortable”, “well maintained” and so on. Although extremes would create an “I know it when I see it” or self evident situation, the evidence in this case suggests that management is making reasonable attempts to address and some effort to obtain compliance, with respect to the majority of the conditions depicted in Exhibit B which are discussed in this paragraph. This conclusion does not apply to the violations found in paragraph 7 of these conclusions. 11. A.R.S.§33-1452 (B) speaks in general terms about tenant obligations to comply with the rules and statements of policy including appearance and exterior materials of the mobile home. The subsection is indirectly applicable in this case in that management is required to enforce the rules fairly under (A)(3) above, as has already been discussed in these conclusions. Since subsection (B) is a specific tenant obligation, there is no independent violation of this provision by the Respondent. Subsection (C) of the statute applies to the Respondent to the extent that if it in fact wishes to legally alter or delete the rules which are not being appropriately enforced (see paragraph 7 of these conclusions) or any other rules, then it is bound by the statutory provision rather than unfettered discretion. No competent evidence was presented with respect to the alleged violation of A.R.S.§33-1452(D)(5), the prohibition of requiring the use of a particular broker, retailer or sales agency. There is no violation of this provision. 12. The Petitioners are correct on the issue of the Desert Rose landscaping. The rule plainly states that colored landscape rock is required for the front of the home and that the backyard may use colored landscape rock or minus ¼ gravel. If there was no distinction between the two, there would be no “or” to imply a choice between two different things. The salient question is what constitutes acceptable “colored landscape rock” and how much of a difference does its use make in comparison to the Desert Rose which is being used? Is the difference substantial or material? Based on the evidence, the question cannot be answered and even though the landscaping rule is not being enforced as it was written, it cannot be said that the deviation is so great as to require the park or individual tenants to undertake the cost to remove the Desert Rose from the front of the homes where it has been put down and replacing it with colored landscaping rock. 13. The efforts made by management to ensure compliance with rules and policy, can always be made more stringent. Management could hire 24 hour security personnel to ensure that all rules are consistently complied with at all times. For obvious reasons this is not recommended or considered desirable. In a situation such as this, it is for the parties to give fair consideration to the other side’s position and understand that governance of human affairs under any circumstance is never going to result in complete agreement and total tranquillity. Counsel for the Respondent cited Foundation Dev. Corp. v. Loehmann’s, 163 Ariz. 438 (1990) for the proposition that trivial breaches of a lease agreement are not a legal basis for forfeiture of a lease. The case concerns a commercial lease and the issue was non payment of certain amounts owed for a common area. The principal of the case is relevant in the instant case to the extent that management is not required and would be unable to evict every tenant for every insignificant breach of the rules. However, multiple trivial breaches may in fact constitute a material breach if the analysis in Foundation Dev, is applied. Management must realize that its exercise of discretion must be governed by reasonable standards which are known to all tenants. The claim made by the Petitioners that they were told the rules are generic and subject to modification at management’s pleasure, if true, is unacceptable. The allegation of non compliance and non enforcement of the rules was not fully proven on all issues but Brown’s assessment of his ability to grant dispensation from the requirements of the rules was rather broad with ample potential for abuse based on arbitrary application of the rules or exceptions from the rules. As already stated, if waivers are to be granted, there must be some known standard which will assure tenants of relatively equal application. 14. The Petitioners have sustained a portion of their complaint against the Respondent. Under A.R.S. §33-1471(A), the breaches are sufficiently material to allow the Petitioners to terminate their rental agreement (assuming the agreement is enforceable), if the breaches are not remedied. Mrs. Hamilton has described this potential remedy as “punishment”. It is not punishment but rather a statutory remedy which is available to the Petitioners if they and the Respondent cannot resolve their differences. It is apparent that Petitioners misperceived the character of the park to some degree. It is also apparent that the Respondent has not been in full compliance with its own rules and the requirements of the Act, and as noted in some instances, has ignored reasonable enforcement of the rules. Neither side is completely correct or at fault. Under such circumstances the parties must determine how they wish to proceed in light of the Order which will issue in this case. Order In view of the foregoing it is ordered that by the effective date of the Order entered in this matter, the Respondent take such steps as are necessary to enforce the rules concerning dogs and fences, landscaping with Desert Rose or a similar or superior product, Fifth Wheels, the for sale sign on lot #49, and conspicuous posting of the manager’s completion of park management requirements. It is further ordered that if the Respondent does not timely comply with the Order entered in this matter that the Petitioners may declare a breach of the lease and terminate the rental agreement as set forth in A.R.S. §33-1471. It is further ordered that the provisions of A.R.S. §33-1471 are not exclusive, and the Petitioners may exercise such other remedies as provided by law for the enforcement of the Order entered in this matter, based on the findings and conclusions of this Decision.

It is further ordered that on or before the effective date of this Order, that the Respondent pay to the Petitioners their filing fee paid under A.R.S. §41-2198.01.

Done this day, January 25, 2002

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, to:

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

By ___________________________

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