ALJDEC decisions subject to certification as final

18F-LTA1819001-ADH · Arizona State Department of Housing - LTA · 2019-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2018 and April 10, 2019 APPEARANCES: Petitioner Linda Monks Ruybalid appeared on her own behalf with other residents Ted Ruybalid, Lyvon Faye Short, and Ralph L. Miller. Respondent TERRA VISTA MHP LLC was represented by Doug Nelson. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Respondent TERRA VISTA MHP LLC (Respondent or Park) is a mobile home park in the state of Arizona. Ms. Ruybalid is a tenant of the park. 2. Linda Monks Ruybalid (Petitioner), together with 12 other residents, filed a Petition for Hearing by the Mobile Home Parks Administrative Law Judge (Petition) in which she alleged multiple violations of the Arizona Mobile Home Parks Residential Landlord and Tenant Act (Landlord Tenant Act). 3. In the Petition, Petitioner set forth a long list of asserted violations that are best described as including the following categories: 1) Conduct, procedures, and policies prohibited by the Landlord Tenant Act, 2) Terms in the new rental agreements prohibited by the Landlord Tenant Act, and 3) Wrongful withholding of security deposits. 4. In its answer, Respondent denied all claims in the petition. 5. On or about May 26, 2017, Respondent issued a letter to tenants that provided as follows: After an initial review of the Rules and Regulations as well as the Rental Agreements, we will be revising all forms and documents for Terra Vista Estates. The standard anniversary date of Terra Vista Estates is September 1, 2017. All tenants will be required to sign new Rental Agreements by September 1, 2017. The new agreements will be available in the office by August 1, 2017. The Rules and Regulations are also being revised to reflect changes that have taken place since their last revision. As soon as the new Rules and Regulations are finalized they will be distributed to you and go into effect thirty days later. Effective September 1, 2017, space rent will increase in the amount of ten dollars ($10.00) per month.[1]

6. On or about July 27, 2017, Respondent issued a letter to tenants that provided as follows: We have completed our review and revisions of the Rules and Regulations and the Rental Agreements for Terra Vista. We are including the revised Rules and Regulations in this mailing. The new rules go into effect immediately for all new tenants and on September 1, 2017 for all existing tenants. We have also completed the revisions for the Rental Agreements. All tenants will be required to sign new Rental Agreements by September 1, 2017. For those who have a current Rental Agreement that extends beyond August 31, 2017, new agreements will be required upon expiration of your current agreements.[2]

7. Petitioner alleged that tenants were “threatened” with eviction actions if they failed to sign the “protested” rental agreements. Some tenants submitted written complaints regarding terms in the new rental agreements, but Respondent did not respond to the complaints. Petitioner argued that Respondent “retaliated” against tenants who complained and refused to accept partial payments from tenants. 8. Over the course of the following months, all of the tenants signed new rental agreements with Respondent including news terms that were different than those that existed in prior leases. No tenants were evicted or received a “1430 notice” for failure to sign the new rental agreements. 9. On September 1, 2017, the new Rules and Regulations included in the above-referenced mailing were effective to coincide with the new lease agreements that were executed.[3] Petitioner alleged at hearing that the new Rules and Regulations were substantial modifications of the prior leases the residents had executed. 10. A specific resident, Ralph Miller, asserted that when he moved into the park he had been promised a rent credit for a period of five years that would result in a monthly rent of $350.00. Mr. Miller signed his original rental agreement on April 1, 2014. When the new owners took over the park, they were unable to locate any documentation to support Mr. Miller’s assertion that he had been given the five-year rent credit. Mr. Miller was unable to provide any such documentation either. As a courtesy, Respondent offered Mr. Miller the rent credit through April 1, 2018, at which time the rent reduction would expire and Mr. Miller’s rent would return to the full amount owed. 11. Petitioner alleged that her mother-in-law also had a unit in the park and had paid a $200.00 deposit that was still owed to Petitioner. 12. At hearing, Petitioner presented the testimony of various tenants regarding the alleged violations. Petitioner questioned the waste removal rates charged to tenants. 13. Neal Haney, property manager, testified that the changes to the rental agreements and Rules and Regulations were in conformity with the Landlord Tenant Act. Mr. Haney denied that Respondent had improperly withheld any deposits. Mr. Haney stated that tenants were charged $12.00 per unit while the City of Tucson charged single family residences $15.00 per month per household for shared containers. CONCLUSIONS OF LAW 1. The Department referred this case to the Arizona Office of Administrative Hearings, and this office has jurisdiction to hear and decide the petition pursuant to A.R.S. § 41-4061 et seq. 2. This case is governed by the Arizona Mobile Home Parks Residential Landlord and Tenant Act found at Arizona Revised Statutes Title 33, Chapter 11 (A.R.S. §§ 33-1401 through 33-1491). 3. Here, Petitioner alleged that Respondent was in violation of the Act.

4. A.R.S. § 33-1452 provides, in relevant part, as follows: E. If any mobile home park owner adds, changes, deletes or amends any rule, notice in writing of all such additions, changes, deletions or amendments shall be furnished to all mobile home tenants thirty days before they become effective by first class or certified mail. Any rule or condition of occupancy that is unfair and deceptive or that does not conform to the requirements of this chapter shall be unenforceable. A rule or regulation adopted after the tenant enters into the rental agreement is enforceable against the tenant only if it does not work a substantial modification of the rental agreement.

Emphasis added.

5. As explained during the hearing, Petitioners signed new rental agreements at which time the new Rules and Regulations went into effect. Therefore, Respondent did not adopt any rules or regulations after the tenants entered into the rental agreements that would require an analysis of whether the change was a substantial modification of the tenants’ rental agreements. 6. A.R.S. § 33-1413 provides, in relevant part, as follows: H. On expiration of a written rental agreement for a specified term or written renewal of a rental agreement, tenancy is on a month-to-month basis unless the landlord, its designated agent or the tenant requests a new written rental agreement. If the landlord and tenant agree to the term of the rental agreement, the rental agreement may be for any term. If the landlord and tenant disagree on the term of the rental agreement, the rental agreement shall be for twelve months.

Emphasis added.

7. As to the allegation that Respondent threatened tenants with evictions in they failed to sign the new rental agreements, Respondent was entitled to request new written rental agreements with the tenants. Tenants were notified that if they failed to sign new rental agreements, they would have to vacate the park. That was not a threat, but rather a statement of the law. The tenants did not have a right to remain in the park without a written rental agreement if Respondent requested one. 8. A.R.S. § 33-1413.01 provides, in relevant part, as follows: D. A landlord may charge separately for removal of waste, garbage, rubbish, refuse and trash and for sewer services. Any charges for removal or sewer services may not exceed the prevailing single family residential charge, fee or rate for these services levied by the political subdivision or provider.

9. According to the evidence submitted, Respondent’s waste removal charge of $12.00 per month per unit was less than the City of Tucson charged single family residential households for waste removal. 10. Petitioners failed to present sufficient evidence to establish Respondent improperly withheld security deposits. 11. The Administrative Law Judge concludes that the preponderance of the evidence failed to establish the alleged violations of the Landlord Tenant Act as alleged by Petitioners. ORDER It is ORDERED that this petition is dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, June 6, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Arizona Department of Housing ----------------------- [1] Exhibit 8. [2] Exhibit 9. [3] Petitioner alleged at hearing that the new rental agreements and the new Rules and Regulations were substantial modifications of the prior rental agreements the residents had previously executed, in violation of A.R.S. § 33-1452(E). As explained to Petitioners, at the hearing, because the new Rules and Regulations were effective for existing residents at the time they signed the new rental agreements, those new Rules and Regulations could not be considered substantial modifications of the new rental agreements they signed. Thus, all Petitioner’s arguments that the new Rules and Regulations were a substantial modification of the tenant’s rental agreements must fail.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826