ALJDEC decisions subject to certification as final

20F-LTA1920001-ADH · Arizona State Department of Housing - LTA · 2019-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

CYNTHIA HERNANDEZ,

Petitioner,

vs.

BREIT MESA VILLAGE MHC, LLC,

Respondent.

No. 20F-LTA1920001-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 27, 2019, at 8:30 a.m.

APPEARANCES: Cynthia Hernandez (“Petitioner”) was represented by Mark A. Tucker, Esq., Mesa, Arizona; Breitt Mesa Village Mobile Home Community (“MHC”), LLC (“Respondent”) was represented by Scott Williams, Esq., Williams, Zinman & Parham, P.C., Scottsdale, Arizona.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

Respondent is an age-restricted mobile home park located at 2701 E. Alred Avenue, Mesa, Arizona 85204 that only rents to tenants who are over 55 years old.

Petitioner lives in a 12’ x 60’ mobile home that was manufactured in 1969 and sometime thereafter placed on space no. 118 in Respondent’s park. On or about July 19, 2019, Petitioner filed a Petition with the Arizona Department of Housing (“the Department”) alleging that Respondent violated the Arizona Mobile Home Parks Residential Landlord and Tenant Act, A.R.S. §§ 33-1401 through 33-1501 (“the LTA”). Specifically, Petitioner alleged that she had lived in Respondent’s park for many years, her ex-husband had conveyed title to the mobile home to her, and Respondent had accepted rent from her. In February 2019, however, Respondent violated the LTA by refusing to give her rent statements or accepting rent payments from her and harassing her by refusing to fix sub-standard pedestal for electrical service to her mobile home.

Respondent’s attorney filed a written answer to Petitioner’s petition, generally denying any violation of the LTA and affirmatively alleging that Petitioner’s claim was barred by the statute of frauds or statute of limitations and failed to state a claim upon which relief could be granted. Respondent also asserted that “the function of the ALJ is unlawful due to the fact that final decisions are made by the administrative law judges of a State Agency other than the Department of Housing” and that “the ALJ lacks jurisdiction to grant the relief requested.” Respondent’s written answer did not specifically address any of Petitioner’s complaint allegations or provide specific facts to support the conclusory assertions.

The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing so that the assigned Administrative Law Judge could make a recommendation to the Director of the Department regarding the just outcome on Petitioner’s complaint.

A hearing was held on November 27, 2019. Petitioner testified of her own behalf, cross-examined Respondent’s current community manager, Cheryl Nothdruft, whom she had subpoenaed, and submitted eighteen exhibits. Respondent submitted seven exhibits and presented the direct testimony of Ms. Nothdruft and Brian Evans, who testified that he had performed certain repairs to and recently inspected the pedestal at space no. 188.

Evidence Presented at the Hearing

Petitioner testified that she divorced her husband, Richard Hernandez, in 2009.

Respondent submitted its Rules and Regulations, which stated that the rules and regulations were effective April 1, 2012. The general requirements for residency were that a mobile home must be a 1990 or newer model when it was first brought into the park, although “older homes that are in excellent condition could be approved by management.” The rules required residents to maintain all vegetation on their lots, except that Respondent’s management would continue to maintain “palm trees and state protected cactus.”

On or about December 18, 2014, Mr. Hernandez signed a lease for space no. 188 in Respondent’s park for the 1969 12’ x 60’ mobile home. The lease was not month-to-month, but instead had a term from December 18, 2014, to December 31, 2015. The base rent from December 18, 2014, to June 30, 2015 was $0.00 and the base rent from July 1, 2015, to December 31, 2015, was $435.00. The lease provided that rent was due on the first day of the calendar month and that, if rent were not paid by midnight of the sixth day of the calendar month, a late charge of $5.00 would be assessed for each day after the second calendar day of the month that rent was not paid.

Petitioner’s name was not on the lease. According to Ms. Nothdruft, Mr. Hernandez never formally terminated the lease.

Petitioner testified that Mr. Hernandez owned two mobile homes and that he was living in and working on the mobile home that was not in Respondent’s park. In November 2015, she moved into the mobile home on space number 118. Petitioner testified that she never lived with Mr. Hernandez in the park.

Petitioner testified that when she moved into the park in November of 2015, she went to Respondent’s office and received a welcome letter. Petitioner testified that she paid $50.00 for a background check and signed a lease on November 6, 2015, but that she did not receive a copy of the lease or of the Rules and Regulations. Petitioner testified that Respondent’s community manager at the time, Bonnie Dupree, and Ms. Nothdruft took her lease application.

Ms. Nothdruft testified that she started working for Respondent in May 2016, and that she could not have been present at a meeting between Ms. Dupree and Petitioner in November of 2015. Ms. Nothdruft testified that Respondent’s files did not include a written lease that was signed by Petitioner or a written approval of her as a tenant.

Petitioner testified that no one at Respondent ever told her that it had rejected her as a tenant.

Petitioner testified that she paid the rent and associated costs for space no. 188 after she moved in. Petitioner testified that Respondent was inconsistent about when it gave her rent statements; sometimes the statements were taped to her door, sometimes the statements were mailed, and sometimes she picked up the statements at the office.

On or about March 10, 2017, Petitioner left a handwritten note for Respondent, asking it to send the last month’s statement and all future statements to her at 3753 E. Broadway Rd., #204, Mesa, Arizona 85024. Respondent subsequently sent rent statements and all other communications, except one, regarding space no. 188 to Petitioner at the E. Broadway Rd. address.

After March 10, 2017, the only notice regarding space no. 188 that Respondent did not send to Petitioner at the E. Broadway Rd. address was a March 13, 2017 notice concerning tenants’ ability to pay rent online, which Respondent sent Mr. Hernandez at space no. 188. The U.S. Post Office returned the notice, stamped “Return to Sender/Vacant/Unable to Forward.”

Between September 27, 2018, and January 31, 2019, Respondent sent notices and rent statements to Complainant at the E. Broadway Rd. address and accepted her payments, in relevant part as follows:

17.1 A rent statement for March 2018, in the amount of $595.05, for which Respondent accepted Petitioner’s March 3, 2018 cashier’s check in the amount of $595.05;

17.2 A rent statement for April 2018, in the amount of $579.58, for which Respondent accepted Petitioner’s March 31, 2018 cashier’s check in the amount of $579.58;

17.3 A rent statement for May 2018, in the amount of $657.74, which included a $50.00 landscape fee, for which Respondent accepted Petitioner’s April 30, 2018 cashier’s check in the amount of $657.74, but which included Petitioner’s note that she “[r]efused to pay $50.00 – no notice sent before weeds pulled”;

17.4 A rent statement for June 2018, in the amount of $651.56, for which Respondent accepted Petitioner’s June 4, 2018 cashier’s check in the amount of $601.56;

17.5 A rent statement for July 2018, in the amount of $802.87, including a previous balance of $50.00, for which Respondent accepted Petitioner’s July 3, 2018 cashier’s check in the amount of $752.87;

17.6 A rent statement for August 2018, in the amount of $845.90, including a previous balance of $50.00, for which Respondent accepted Petitioner’s August 24, 2018 cashier’s check in the amount of $1,682.33;

17.7 A ninety-day notice dated September 27, 2018, stating that, effective January 1, 2019, base rent would increase to $470.00/month;

17.8 A rent statement for October 2018, in the amount of $928.96, including a $140.00 previous balance, for which Respondent accepted Petitioner’s October 3, 2018 cashier’s check for the amount of the current charges of $788.96;

17.9 A ninety-day notice dated October 24, 2019, stating that, pursuant to A.R.S. § 33-1432(G), her monthly base rent would be increased by $25.00/month.

17.10 A rent statement for November 2018, in the amount of $927.24, including a $140.00 previous balance, for which Respondent accepted Petitioner’s November 5, 2018 cashier’s check for the amount of the current charges of $792.24;

17.11 Respondent’s November 6, 2018 notice to Petitioner that her space needed maintenance work, specifically, “need to remove tree from back yard – safety hazard” within 7 days;

17.12 A rent statement for December 2018, in the amount of $1,533.25, including a $927.24 previous balance, for which Respondent accepted Petitioner’s December 7, 2018 cashier’s check for the amount of the current charges of $606.01; and

17.13 A rent statement for January 2019, in the amount of $1,297.55, including a $701.42 previous balance, for which Respondent accepted Petitioner’s December 31, 2018 cashier’s check for $596.13 and December 31, 2018 personal money order for $135.00, which totaled the current charges of $731.13. The January 2019 rent statement included a hand-written note, “Tree must be removed in back yard.”

Ms. Nothdruft acknowledged that the documents that were addressed to Petitioner were usually sent to tenants. Ms. Nothdruft explained that sometimes such documents were addressed to the entity or person who paid the rent rather than to the tenant who had signed the lease and lived in the mobile home, for example, Section 8 tenants or tenants whose rent was paid by a trust. Ms. Nothdruft testified that she owns two mobile homes in the park, that her mother is a tenant in one of the homes, and that Respondent sent the rent statements to Ms. Nothdruft because she paid them.

Ms. Nothdruft testified that tenants were responsible for weeds and other vegetation on their space other than palm trees and saguaros. Ms. Nothdruft testified that tenants usually received written notice to attend to landscaping before they would incur a charge for landscaping.

Ms. Nothdruft testified that Petitioner’s neighbor complained that a tree on space No. 188 was hanging over the roof of his shed, which he had already replaced. Ms. Nothdruft testified that she looked at the tree and that it was on the edge of Petitioner’s space. Ms. Nothdruft testified that she did not know of any other instances in which a tenant had been required to remove a large tree from the tenant’s space.

The note that Petitioner wrote on Respondent’s November 6, 2018 notice to cut the tree in her back yard stated that in December 2018, or January 2019, she had spoken to the neighbor and trimmed the branches from the tree so that they did not overhang the neighbor’s shed.

In February 2019, Respondent stopped giving Petitioner rent statements or accepting rent from her. Ms. Nothdruft testified that Respondent’s corporate offices had instructed her not to send any more statements to or accept any more payments from Petitioner.

Respondent prepared a statement of account that showed that, as of April 2019, Petitioner owed $2,400.87 for rent and other charges. Ms. Nothdruft could not explain many of the charges, but acknowledged that Respondent had apparently failed to apply Petitioner’s November 5, 2018 rent payment to Petitioner’s balance due. Ms. Nothdruft suggested that the failure might have been due to a “glitch” in scanning the check. Ms. Nothdruft acknowledged that she did not have any document that showed how much Petitioner owed as of the date of the hearing.

Ms. Nothdruft testified that in March 2019, Respondent issued a “14/30 day” eviction notice to Petitioner and Mr. Hernandez based on falling behind in paying rent and other charges. The eviction notice was not submitted into the record. Ms. Nothdruft testified that if Petitioner paid the full amount owed, she did not know whether corporate would accept the payment. Ms. Nothdruft testified that Complainant had unauthorized guests, although that was not the reason for the eviction notice.

Petitioner testified that she suffers from chronic pain and sometimes needs one of her sons to stay overnight with her. Petitioner testified that all three of her sons lived elsewhere. Petitioner testified that she had given Ms. Nothdruft a 2017 version of her physician’s letter about the need for her sons to stay overnight.

Ms. Nothdruft testified that in May 2019, Respondent removed the tree from space no. 188 because its roots had gotten into the RV site behind space no. 188. Respondent did not charge Petitioner for the removal.

Complainant testified that half the outlets in her mobile home do not work. Complainant testified that Respondent’s electrician, Brandon Evans, came out to install a breaker because she had installed a washer and dryer. Complainant testified that Brandon Evans told her that she needed a new pedestal and should request that Respondent provide one.

Ms. Nothdruft testified that she heard about the problem with Petitioner’s pedestal in May 2019. Respondent submitted an invoice from Brandon Evans Electrical Contracting to Respondent dated August 21, 2016, in the amount of $746.02, with the following scope of work:

Homeowner trying to get away with installing sub-panel on the side of his unit. Doing it complete illegal, we went out to disconnect and make safe as were doing so wires were burnt back in main sub-panel overloaded. Got power safe and clean again.

Brian Evans (“Mr. Evans”) testified that he is Brandon Evans’ father and that he works for his son’s business. Mr. Evans testified that a few years ago, he inspected the pedestal and found a mess because the tenant on space no. 188 had made changes to the pedestal. Mr. Evans testified that he installed a new subpanel to fix the problem. Mr. Evans did not testify whether he saw Mr. Hernandez or Petitioner at the mobile home when he performed repairs.

Respondent submitted a note dated September 26, 2016, from Respondent’s former community manager, Bonnie Dupree to Mr. Hernandez, stating that “[o]n September 9, 2016 we had to call an electrician to remove a breaker box that was added and fix the pedestal” and that Mr. Hernandez needed to pay the amount of the bill. The amount of the bill was not provided, but the note said that Mr. Hernandez needed to pay $150.00 per month until the bill was paid. The record does not reveal whether Mr. Hernandez or Complainant paid any portion of the bill.

Mr. Evans testified that in June 2019, he was called out to investigate the homeowner’s complaint about the pedestal on space no. 188. Mr. Evans testified that he did a load count and amp draw and that the pedestal was fine. He acknowledged that he did not know whether all the electrical components in the mobile home worked.

Petitioner testified that she purchased the mobile home from her ex-husband Richard Hernandez in July or August 2019.

Ms. Nothdruft testified that the tenant was whoever signed the lease. If someone purchases a mobile home at Respondent’s park, they must file an application and, if the application is approved, a lease. Ms. Nothdruft testified that Petitioner never requested a lease and that, until Mr. Hernandez’ December 2014 lease were terminated, Respondent could not lease space no. 188 to anyone else, including Petitioner. Ms. Nothdruft testified that there was nothing in Respondent’s file that showed that Petitioner had ever been approved as a tenant or that she was offered or ever signed a lease.

Ms. Nothdruft testified that, when Petitioner started falling behind on her rent, she came to the office and requested documentation about how much she owed. Ms. Nothdruft testified that she put together the documents, but that Petitioner never returned to pick the documents up. As noted above, Respondent did not submit any accounting into the record that would allow Petitioner’s outstanding rent and other charges to be calculated.

Respondent argued at the hearing that only Mr. Hernandez had a right to space no. 188. Since Petitioner did not have a lease, Respondent argued that she did not have standing to file a petition to the Department or a right to occupy space no. 188.

CONCLUSIONS OF LAW

The Department has jurisdiction to determine whether Respondent violated the LTA, as alleged in Petitioner’s petition.

Petitioner bears the burden of proof to establish the violation by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not. A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Richard Hernandez’ lease expired by its terms on December 31, 2015. The lease did not need to be terminated, but had become at most a month-to-month tenancy. See A.R.S. § 33-1413(H). By the time Petitioner moved into the mobile home on space no. 188 in early November 2015, Mr. Hernandez had moved out of the mobile home and violated the LTA by failing to give notice to Respondent that he was moving out, see A.R.S. § 33-1451(A)(6), and stopped paying rent, thereby providing grounds for Respondent to terminate the lease, see A.R.S. § 33-1476(D)(1).

Petitioner credibly testified that she went into Respondent’s office on November 6, 2015, and informed Respondent’s community manager that she was moving into the mobile home on space no. 188 and that the manager gave her a welcome letter. Petitioner credibly testified that she remembers signing a lease.

In any event, by late 2015, Respondent knew that Petitioner was living at space no. 188 and knew or should have known that Mr. Hernandez was not living at space no. 188. See A.R.S. § 33-1412(A). Respondent was required, but apparently failed, to provide a written rental agreement to Petitioner at the beginning of her tenancy, see A.R.S. § 33-1413(A), and Petitioner did not demand that Respondent provide a lease because she thought that she already had one, see A.R.S. § 33-1413(K).

Over the next three years after Petitioner moved in and Mr. Hernandez moved out of the mobile home on space no. 118, Respondent accepted Petitioner’s rent payments, tacitly accepting Petitioner as a tenant as defined by the LTA. See A.R.S. § 33-1409(29) (“‘Tenant’ means a person signing a rental agreement or otherwise agreeing with a landlord for the occupancy of a mobile home space” (emphasis added)). At some point, however, Respondent decided it would no longer treat Petitioner as a tenant.

The record does not contain Respondent’s March 2019 eviction notice to Petitioner. Complainant’s failure to remove the tree that allegedly was growing on space no. 188 does not furnish cause to evict her because in May 2019, Respondent removed the tree and, in any event, Respondent has never required any other tenants to remove large trees from their spaces that they did not plant. Respondent was required to allow Petitioner’s sons to stay overnight with her when she needed help after she provided her doctor’s note. See A.R.S. § 33-1413.03.

The record does not contain any notice to Petitioner that she was required to perform landscaping in May 2018, which Respondent was required to provide before it charged her landscaping fees. See A.R.S. § 33-1412(B). Ms. Nothdruft testified that Petitioner came to “corporate’s” attention after she began getting behind on rent. Petitioner was 23 days late in paying the August 2018 rent and one day late in paying her December 2018 rent, although Respondent did not apparently charge her any late fees for her late payment in December 2018. The record does not contain the basis for Respondent’s calculation of late fees; under Mr. Hernandez’ December 14, 2014 lease, the late fee would have been $115.00. In any event, although Petitioner’s August 2018 rent was late, it appears to be the only significantly late payment on the record and Respondent did not attempt to evict Petitioner at that time but, instead, accepted five more months of lease payments. Under the circumstances, late payment of rent is not a basis for the eviction of a tenant. See A.R.S. § 33-1476(D) and (E).

A.R.S. § 33-1410 provides that “[e]very duty under this chapter and every act which must be performed as a conditions precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.” “‘Good faith’ means honesty in fact in the conduct or transaction concerned.” A.R.S. § 33-1409(11). Petitioner established that Respondent did not act in good faith in refusing to issue rent statements to her, refusing to accept the rent she attempted to pay, and attempting to evict her from space no. 188 in March 2019. Most of Respondent’s explanations and justifications for its actions appear to be pretextual.

The Administrative Law Judge notes that Brandon Evans’ invoice was dated nearly three weeks before the date that Respondent’s community manager Ms. Dupree’s letter to Mr. Hernandez stated the work was done. Nonetheless, Complainant did not establish that the pedestal for space no. 188 requires repair or that Respondent refused to repair the pedestal.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Director of the Department of Housing uphold Petitioner’s complaint in part and issue the following order to require Respondent to comply with A.R.S. §§ 33-1410, 33-1413(A), 33-1413.03, and 33-1471,

IT IS ORDERED that, on or before 10 (ten) days after the effective date of the final order, Respondent shall provide a written lease for space no. 188 to Petitioner whose terms that are the same as those offered to other tenants of similar spaces in Respondent’s park.

IT IS FURTHER ORDERED that on or before 30 (thirty) days after the effective date of the final order, Respondent shall provide an accounting of the monies that Petitioner owes to Respondent for August 2018, to date, excluding the $50.00 landscaping fee and substituting a $115.00 late fee for the August 2018 $140.00 late fee.

IT IS FURTHER ORDERED that, if Petitioner does not find the lease or the accounting that Respondent provides to be acceptable or not to have been offered in good faith, she shall file another petition with the Department, which may be referred in due course to the Office of Administrative Hearings.

IT IS FURTHER ORDERED that on or before 90 (ninety) days after the effective date of the final order, Complainant shall tender to Respondent, and Respondent shall accept, all undisputed amounts owed.

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, December 12, 2019.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director

Arizona Department of Housing