ALJDEC decisions subject to certification as final

21F-LTA2020006-ADH · Arizona State Department of Housing - LTA · 2021-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

KATHERINE CURBELLO,

Petitioner,

v.

ROCK HOUSE RIVER RANCH, LLC, et al.,

Respondent.

No. 21F-LTA2020006-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 1, 2021

APPEARANCES: Katherine Curbello (“Petitioner”) appeared on her own behalf. Trevor J. Fish, Esq. represented Rock House River Ranch LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Respondent is a mobile home community (“Park”) located in a rural area approximately 25 miles from Globe, Arizona. Park has no official office and no posted business hours. Respondent either uses, maintains, or owns a location within the Park that was the prior Park owner’s location previously used to post notices within the Park premises.

On or about June 17, 2020, Petitioner filed a Petition with the Arizona Department of Housing (“Department”) alleging that Respondent violated the Arizona Mobile Home Parks Residential Landlord and Tenant Act, Arizona Revised Statutes (“A.R.S.”) §§ 33-1401 through 33-1501 (“LTA”). Specifically, Petitioner alleged that Respondent violated A.R.S. §§ 33-1413(A), 33-1413.01, 33-1434(A)(1), 33-1436, 33-1455(B) through various actions.

The Department assigned Case No. LTA 20-20/006 to Petitioner’s Petition and, by letter dated June 26, 2020, sent by certified mail to Respondent, notified Respondent of the Petition.

After legal counsel for Respondent filed a July 22, 2020 written answer, the Department referred the matter to the Office of Administrative Hearings (“Tribunal”), an independent state agency, for an evidentiary hearing.

On or about September 9, 2020, the Department sent a Notice of Hearing to the parties setting an administrative hearing on October 14, 202 regarding the issues raised in the Petition. The Department noticed alleged violations by Respondent of A.R.S. §§ 33-1413, 33-1413(B), 33-1432(E), 33-1434, 33-1436, 33-1454, and 33-1491 as presented in Petitioner’s request for hearing.

At the time of the noticed hearing, the parties requested that the hearing be rescheduled for an in-person hearing.

Petitioner did not submit any specific hearing exhibits. The documents forwarded to the Tribunal from the Department were admitted into the hearing record for Petitioner.

Respondent submitted fourteen exhibits and copies of laws.

When the hearing convened on April 1, 2021, Petitioner indicated that many of the Petition issues were moot because, since the filing of the Petition, she had moved from the Park. Petitioner indicated that there were only two issues remaining: (a) Respondent’s denial of a Clearance Letter when Petitioner wanted to remove her mobile home from Park and (b) Respondent’s eviction action being retaliatory.

Both of Petitioner’s remaining issues culminated subsequent to the filing of the Petition.

Under her August 1, 2018 rental agreement (“Lease”) with the prior owners of the Park, Petitioner owed rent on five spaces: 14, 15, 16, 18, and 19 beginning on November 1, 2018. See Exhibit 1. Monthly rent was due on the 1st of the month and was delinquent if not paid by the 10th with a $50.00 penalty as well as a $5.00 per day late fee beginning on the 11th until the delinquent rent was paid. Id.

On or about August 14, 2019, Respondent purchased the Park.

On May 2, 2020, Petitioner noticed that the Owner was in the Park and went to pay the May rent in person to the Owner at the “store.” See Petition at ADH000012-13. Petitioner attempted to pay May rent for the residents of “Space 17” in cash. However, Owner would not accept a cash payment, a check, or a money order from Petitioner and told Petitioner that she would only accept payment of the rent for Space 17 from the residents of Space 17. Petitioner indicated that, as the discussion continued, voices were raised by herself and by Owner’s daughter.

On May 2, 2020, Respondent gave Petitioner a notice of a rent increase, effective August 1, 2020. See Exhibit 2.

Petitioner indicated that, typically, Respondent would either hand deliver or email the residents an invoice for the monthly rent. The invoices would include calculated utilities amounts. Petitioner indicated that she had always paid on time and in full.

With the rental increase, the rift continued to escalate between the parties.

On May 4, 2020, Respondent sent a NOTICE TO REMEDY VIOLATION OF PARK RULES to Petitioner. See Petition at ADH00008-9. Without designating the specific Park rule, the Respondent indicated that Petitioner was required to conduct herself in a manner that would not disturb peaceful enjoyment of the premises and in a law-abiding manner. Respondent alleged that Petitioner had engaged in harassing and intimidating behaviors and was not “authorized” to enter the landlord’s private property. As to the specific actions, Respondent stated that Petitioner had entered private property of the landlord and verbally accosted (i.e., “exploded”) the owner and her daughter and, later, had again “exploded” when they were serving “notices” to tenants. Finally, Respondent indicated that Petitioner had “driven by” the landlord’s private property three times and “flipped off” the owner and daughter each time.

Based on the location of the Park (at a public highway), the location of Petitioner’s home in the Park, and the location of Owner’s property, Petitioner is forced to drive on the only road in and out of the Park and, as a result, drives by both the Owner’s personal and private property.

Spaces 18-19 contained a home that Petitioner had sold, and title transferred, on May 20, 2020 to Russell Rogers whose son Danny Rogers was handling his affairs. See Exhibit 3. The sale process of the home had begun in February of 2017 and, due to the upcoming rental increase, Petitioner and Mr. Rogers had come to a final arrangement, completing the sale.

By letter dated May 29, 2020, Petitioner informed Respondent that the sale of the home located at Spaces 18-19 home had been completed. See Exhibit 3.

By letter dated June 1, 2020, Petitioner gave notice to Respondent that she would no longer be responsible for the rent for Spaces 18-19 as Mr. Rogers or his son would be taking over responsibility. See Exhibit 4.

Petitioner’s intent, under her month-to-month leasing situation, in notifying Respondent of the Space 18-19 home sale was for the new owner, Mr. Rogers, to be responsible for the rent from July 1st forward (the June rent having been paid). However, Respondent subsequently informed Petitioner that Respondent expected rent payment from Petitioner and not from Mr. Rogers. See ADH000060. According to Petitioner, Mr. Rogers was going to be abandoning the home and Danny had given Petitioner permission to remove anything salvageable from the home.

By letter dated June 2, 2020, Petitioner had notified Respondent that they would be leaving the Park “hopefully” before August 1st. See Exhibit 5.

In a text message on June 8, 2020, Owner’s daughter informed Petitioner that Mr. Rogers was not Respondent’s tenant and that Petitioner remained responsible for the rental on the five lots. See Petition at ADH00004. Further, Owner’s daughter indicated that anyone who was not a tenant needed permission and approval from the landlord to come onto the premises or the sheriff would called to escort them off the [Park] premises for trespassing.

Petitioner responded:

You have your interpretation and I have mine. We can settle this with the housing authority. Kindly stop texting me and ruining my day. Please submit any correspondence by mail and I will do the same.

Despite being asked by Petitioner to correspond with her by mail, Owner’s daughter responded:

This isn’t my interpretation. It’s our lawyers. I will be sending via mail as well, just wanted to make sure you got ahold of Russell’s son in time for next month. We will not accept any check from you that is less than the amount on the invoice, nor will we complete the trailer park fund paperwork releasing your trailer if your rent is delinquent. Have a good day.

Petitioner responded:

Stop harassing me! I asked politely for you to stop texting.

Lease Provision 13 called for Petitioner not to remove homes from the rented spaces “unless Tenant has received from Landlord a clearance for removal showing that all monies due Landlord as of the date of removal have been paid, or that Landlord and Tenant have otherwise agreed to the removal.” See Exhibit 1. Park Rule 20 indicated that a tenant could not remove a home from the space unless the landlord gave a clearance letter showing that “monies due ... as of the date of removal have been paid...” and showing the space restoration requirements to be met.

Lease Provision 12 provided that, if a 30-day vacate notice was not given, the tenant would be “responsible for rent equal to an amount consistent with the applicable notice period.”

Lease Provision 4 provided:

Rent for portions of a month shall be uniformly apportioned from day to day for the number of days Tenant resides in the park and is due and payable no later than the last day of tenancy and prior to removal of the mobile home from the park if the mobile home is being moved.

By letter dated June 17, 2020, Petitioner notified Respondent that with the “threat of not releasing [Petitioner’s] mobile home” if she did not pay for all five spaces, Petitioner had decided to file a claim with the Department. See Petition at ADH000011.

Petitioner filed her Petition dated June 17, 2020 with the Department; the Department received the Petition on June 19, 2020.

By NOTICE OF TERMINATION OF RENTAL AGREEMENT (“Notice”) dated June 29, 2020, Respondent notified Petitioner that she was in violation of Park Rule 5(b) and 5(k) by having deliberately removed exterior windows and doors from, and damaging, the Lot 18-19 home on June 27th and June 28th. See Exhibit 6.

The June 29, 2020 Notice is a notice that the parties’ rental agreement will terminate thirty days after receipt of the notice, with the advisement that if the stated violations are not remedied within 14 days, the space must be vacated within 30 days and legal process would be instituted. Such a notice is commonly referred to as a 14/30 notice (herein, “14/30 Notice”).

Respondent sent the “14/30 Notice’ by certified mail to Petitioner. The first entry on the U.S. Postal Service (“USPS”) tracking information for this mailing is June 30, 2020 not June 29, 2020.

The hearing record does not document when Petitioner received the “14/30 Notice.” The hearing record indicates that, on July 2, 2020, the USPS left a reminder notice for Petitioner to arrange for delivery of the item.

In her Request for Hearing, Petitioner indicated: “On 07/08/2020 I received a “Notice of Termination of Rental Agreement for Non-Payment of Rent” dated 07/03/2020. See ADH000030. However, the hearing record does not contain a copy of such a notice.

By letter dated June 29, 2020, Petitioner gave Respondent a 30-day notice that she would be vacating Lots 14, 15 and 16 by August 1, 2020. See Exhibit 8. The letter also informed Respondent that Mr. Rogers would be abandoning the Lot 18-19 home.

Petitioner’s 30-day notice of vacating the Space 14, 15 and 16 premises was sent to Respondent on July 1, 2020 by certified mail and the letter was delivered to Respondent on July 3, 2020. Petitioner included full payment of the July rent with this letter.

Respondent’s tenant-account information indicated that the July rent payment was processed on July 6, 2020. See Exhibit 12.

By letter dated July 24, 2020, the Arizona Department of Housing approved relocation expenses (up to $12,500.00) for Petitioner with regard to the home on Lot 15. See Exhibit 10.

In a Complaint dated July 27, 2020, Respondent instituted eviction proceedings against Petitioner. The Complaint specifies:

#2. That [Petitioner] wrongfully withholds possession of the premises from [Respondent]; [Respondent] is entitled to immediate possession of the following described premises : 5732 N. AZ HWY 288, BOX 6 #14, 15, 16, 18, 19, GLOBE, AZ 85501;

.........

#6. As of 07/27/2020 the following amounts are due and owing: Rent of $890.76; Late fees of (17 Days x $5.00 + $50.00) $135.00; Court Costs of ($35.00 Filing Fee + $0.00 Process Server Fee) $35.00; Attorneys’ Fees of $250.00; For a total of $1,310.76, plus after accruing costs.

Respondent’s tenant-account information noted (a) the June rent payment was processed on June 5, 2020 in the amount of $856.08 and (b) the July rent payment was processed on July 6, 2020 in the amount of $890.76. See Exhibit 12. Therefore, as of the date of the Complaint, the rent amount stated in the Complaint was not the August rent but was the July rent which had, in fact, already been paid to Respondent on July 6, 2020.

In her Request for Hearing, Petitioner acknowledged that she had received a summons for the eviction action on the two above-referenced charges. See ADH000030-31.

Although she had indicated that her Space 15 would be vacated by August 1, 2020, it turned out that such circumstance was not possible.

By August 3, 2020, the real property site to which Petitioner’s home was to be moved and placed was ready.

On August 3, 2020, the company with which Petitioner contracted to move her home contacted Respondent about access to begin the process; however, Respondent refused to allow the company to begin/prepare to move the home until the eviction hearing was completed.

At hearing, Petitioner indicated that she had been “ready” to leave the Park by August 6, 2020 and would have been out by that date if Respondent had given clearance.

While one other tenant received, by hand-delivery, the August rent invoice on August 1, 2020, Petitioner did not receive an August rent invoice from Respondent either by hand delivery or by email.

By letter dated August 7, 2020, Respondent provided Petitioner with instructions regarding the removal of the home, which included a requirement that the August rent for all five lots be paid (along with the July utilities) prior to providing a Clearance for Removal letter. See Exhibit 11. Respondent requested a specific date for the removal, the contact information of the person/entity that would be removing the home, and the contact information of the person/entity that would be “restoring” the space. Additionally, Respondent noted:

Acceptance of the above rental charges shall not constitute a waiver of the Park’s right to terminate your rental or lease agreement and/or proceeding with the special/forcible detainer eviction action that is currently pending before the Globe Regional Justice Court in Case No. CV2020-180.

On August 10, 2020, Respondent obtained an eviction judgment against Petitioner which assessed a “rent” amount, fees, and court costs. See Exhibit 14. Petitioner’s restitution date (for Respondent’s possession of the Lots 14, 15, 16, 18 and 19) was August 17, 2020.

Petitioner obtained clearance from Respondent on August 11, 2020, the home was gone on August 13, 2020, and Lot 15 was clear and leveled on August 15, 2020.

The hearing record does not contain a copy of the Clearance letter.

At hearing, Petitioner testified that she had requested, by email, but never received from Respondent, the August rent invoice; Petitioner did not receive the August rent invoice until the day of the eviction hearing in Globe, Arizona. At hearing, Petitioner testified that, at that August 10, 2020 eviction hearing, Respondent refused to accept any August rent payment, causing Petitioner to have to take payment to the attorney’s office in Mesa, Arizona.

The Eviction Order set forth a “rent” amount of $2,511.90” and a “utilities” amount of $320.06, with a total due of “$3,184.96, plus after accruing costs.” However, Petitioner paid Respondent the amount of $4,114.06. See ADH000056-57.

At hearing, Petitioner argued that, despite Respondent knowing Petitioner was leaving the Park and was arranging to move her home and despite Petitioner having paid the July rent, Respondent withheld the letter of clearance preventing Petitioner from being able to arrange to have her home moved by August 1, 2020 and, further, required Petitioner to pay an entire [August] month’s rent despite only being there for a partial month.

At hearing, Petitioner argued that the eviction action, and the failure to give a clearance letter, were retaliatory actions for the filing of the Petition. Petitioner noted that another factor supporting her argument was that, in fact, the July rent had already been paid and received by Respondent. Petitioner further argued that Respondent intentionally withheld approval for a contractor to move the home by the August 1st date that Petitioner had given, forcing her to pay August rent. Finally, Petitioner argued that she was out of the Park (and Lot 15 was vacant) on August 15th and that, pursuant to Park rules, her August rent should have been prorated and she should be entitled to reimbursement of some of the August rent.

At hearing, Respondent argued that the Lot 18-19 home had become a health and safety issue and that Petitioner’s eviction on those grounds was appropriate. Respondent further argued Petitioner did not give proper notice of leaving the Park because a 30-day notice needed to be given for moving the Lot 15 home and Respondent had not received the June 29, 2020 notice until July 3, 2020 which meant that the 30-day period would end on August 3, 2020 which resulted in the August rent having to be paid before the home could be moved. Respondent further argued that that the Lot 15 home was not ready to be moved on August 1, 2020 and the contractor had come by after August 1, 2020. Respondent argued that it had not withheld clearance, but the rent needed to be paid prior to the removal of the home.

Despite the existence of A.R.S. § 33-1413(E) and Lease Provision 4, Respondent argued at hearing that there was not a statutory requirement or a lease-provision requirement to prorate the rent.

At hearing, Respondent’s owner stated that the eviction action was as to the August rent, acknowledging that the July rent had been paid.

While Respondent’s owner testified that she did not receive the Department’s notice of Petitioner’s Petition until after she sent the “14/30 Notice,” she could not recall when she received the Department’s notice of Petitioner’s Petition.

In her Request for Hearing to the Department, Petitioner noted that the Department’s tracking of its notice to Respondent of Petitioner’s Petition indicated that it was “delivered to [Respondent] on 06/29/2020 at 12:08 PM.” See ADH000030.

CONCLUSIONS OF LAW

The Department has jurisdiction to determine whether Respondent violated the LTA in the actions or inactions alleged in Petitioner’s Petition.

Petitioner bears the burden of proof to establish that Respondent violated the LTA in the manner alleged in the Petitions, and that standard is 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.”

Allegation – Eviction action being retaliatory

A.R.S. § 33-1491(A) provides in relevant part as follows:

Except as provided in this section, a landlord shall not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for eviction after any of the following:

1.The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety. 2.The tenant has complained to the landlord of a violation under this chapter.

...

4.The tenant has filed an action against the landlord in the appropriate court with the appropriate housing officer.

A.R.S. § 33-1491(D) provides that, notwithstanding subsection (A), a landlord has discretion to bring an eviction action for violation of an applicable building or housing or when a tenant is in default of rent.

The Administrative Law Judge concludes that the hearing record demonstrates the July 27, 2020 Complaint instituting evection action was retaliatory in violation of A.R.S. § 33-1491 for several reasons. First and foremost, at the time of the July 27, 2020 Complaint, Petitioner was not in default of the stated July rent amount. Prior to Petitioner filing the June 17, 2020 Petition, not only had Petitioner complained to Respondent of failure to maintain the Park premises in fit condition, Petitioner had also informed Respondent on June 8, 2020 that she was going to take the “rent”, “rental”, and “subletting” matters to “the housing authority.” Additionally, Petitioner sent Respondent a letter dated June 17, 2020 indicating that she had filed a complaint with the Department. While Respondent did not yet have an official notice from the Department, Respondent had knowledge of a filing.

Further, the hearing record does not support Respondent’s statement that the “14/30 Notice” was sent to Petitioner before Respondent received the Department’s notice of Petitioner’s Petition. The date of the payment receipt presented to document the mailing cannot be ascertained, and the first date on the USPS tracking information is June 30, 2020. The Department’s tracking information indicates that Respondent received the Department’s notice of the Petitioner’s Petition on June 29, 2020 at 12:08 p.m. Finally, the possession issue could not have been ripe until 30 days after Petitioner received the “14/30 Notice” which she had not received as of July 2, 2020.

Allegation – clearance letter

Lease Provision 13 of the Lease and Park Rule 20 both indicate that the landlord had to provide a clearance letter for Petitioner’s home on Space 15 to be moved. Petitioner was aware that she needed the clearance letter and, apparently believed that, due to her 30-day vacate notification for August 1, 2020, Respondent would issue a clearance letter for August 1, 2020.

The hearing record demonstrates that Petitioner did not receive an invoice for the August rent until the day of the eviction hearing.

Having received Petitioner’s 30-day vacate notification on July 3, 2020, Respondent could have, and should have, provided an instructional letter at that time. Respondent could have issued its instructional letter on or shortly after July 3, 2020. While Petitioner could not have predicted that her new location for the home would not have been ready, neither could Respondent have predicted that Petitioner would not meet the August 1, 2020 date she had stated would be the removal date.

At hearing, Respondent essentially argued simply that the Lot 15 home was not ready to be moved on August 1, 2020 and, thus, it had not withheld clearance, but was waiting for the August rent to be paid.

Respondent’s August 7, 2020 instructional letter to Petitioner indicated that Respondent needed the “date” and other contractor and restoration information, and stated that the full August rent (at the increased rental amounts and the July utilities) needed to be paid before Respondent would issue a clearance. However, A.R.S. § 33-1413(E) and Lease Provision 4 allow periodic rent to be apportioned for the number of days the tenant is residing in the Park.

Given the statutory discretion to proceed with an eviction process and the Lease Provisions regarding (a) a tenant being responsible for the applicable 30-day vacate notice period, and (b) rent being apportionable, the Administrative Law Judge concludes that Respondent inappropriately stalled the clearance letter process for the eviction process and failed to issue a clearance letter when it received the 30-day vacate notification.

The Administrative Law Judge concludes that the preponderance of the evidence established Respondent violated A.R.S. §§ 33-1413 and 33-1491.

RECOMMENDED ORDER

Based on the foregoing,

IT IS ORDERED that Petitioner’s claim against Respondent be upheld as to retaliation in the eviction proceedings in violation of A.R.S. § 33-1491.

IT IS FURTHER ORDERED that Petitioner’s claim against Respondent be upheld as failure to follow the parties’ rental agreement in violation of A.R.S. § 33-1413(E) and, therefore, the August rent should be uniformly apportioned day by day as to the Petitioner’s actual tenancy.

IT IS FURTHER ORDERED that Respondent be required to reimburse to Petitioners their $50.00 filing fee.

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, May 2, 2021.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Carol Ditmore, Director

Arizona Department of Housing