ALJDEC decisions subject to certification as final

23F-LTA2223006-ADH · Arizona State Department of Housing - LTA · 2023-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jason Houston, et al.,

Petitioner,

Rosehaven MHP, et al.,

Respondent.

No. 23F-LTA2223006-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 10, 2023

APPEARANCES: Petitioner Jason Houston appeared on his own behalf. Respondent Rosehaven MHP was represented by Scott Baluha, Esq.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Rosehaven MHP (“Respondent”) was a mobile home community located at in Apache Junction, Arizona. Jason Houston (“Petitioner”) rented Site number 336 from Respondent.

On or about April 21, 2023, Petitioner filed a Petition with the Arizona Department of Housing (“Department”) alleging that Respondent violated the Arizona Mobile Home 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(B), 33-1432(A)(H), 33-1434(A)(2), (3), (7), 33-1436 (A), (B) 33-1452(B), (F)(1), and 33-1453(A), through various actions and failures, as outlined in the Petition for Hearing.

After Respondent filed a written answer, the Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

At hearing, Petitioner testified on his own behalf and Petitioner’s Exhibit A was admitted into evidence.

At hearing, Counsel for Respondent argued that the scope of the hearing should be limited to one year preceding Petitioner’s filing of the Petition, as the limitations period for a tenant to file an administrative complaint under the LTA is one year after the alleged violations of the LTA by a landlord. Because Petitioner did not file his petition with the Department until April 21, 2023, any claims that he may have had for Respondent’s alleged violations of the LTA prior to April 21, 2022, are time-barred.

Background

Petitioner entered into a rental agreement with Respondent and moved into the community on or about October 29, 2013. On or about October 31, 2022, the San Tan Justice Court entered an Eviction Judgment against Petitioner. On November 17, 2022, Petitioner filed an Unlawful Ouster Complaint against Respondent, however that was dismissed by the San Tan Justice Court on November 28, 2022.

Hearing testimony

Petitioner testified that since the Eviction Judgment he had been sleeping in his car, although his rent had been paid through December. He also testified that he had a medical condition known as “hyperthymesia”, which allowed him to recall past experiences with great accuracy.

As to the specific allegations contained in his 6th Amended Complaint, Petitioner testified to the following:

On or about June 7, 2022, he has given a new lease to review and sign but had many “blanks”, including the name and address of the owner. Petitioner then gave the lease back to Ms. Susanne Kocherhan instructing her to fill in the blanks. Petitioner testified that he never signed the lease as he was unaware that he needed to make an appointment to do so.

In addition, Petitioner testified that Respondent had suspended trash pickup and water service to his unit as of November 15, 2022.

Petitioner also testified that he never received a copy of the Rules and Regulations and Policies of Respondent were provided to him as per the LTA.

Further, Petitioner testified that Ms. Kocherhan was frustrating his attempt to sell his home as she would not allow his real estate agents to freely come to the property to value the home for sale.

Petitioner also testified that he believed that Ms. Kocherhan illegally entered his mobile home and stole a gray garbage can and several items. Petitioner testified that he did not call the police, and did not confront Ms. Kocherhan until several weeks later. Petitioner testified that when he did, Ms. Kocherhan offered to credit his November 2022 rent.

Respondent offered the testimony of Susanne Kocherhan and offered 16 exhibits into evidence.

Ms. Kocherhan testified to the following in response to Petitioner’s allegations:

Ms. Kocherhan testified that Treehouse Communities was attempting to have all of the tenant’s leases become uniform under the “Treehouse Communities” name. She testified that to achieve this, draft copies of the leases were provided to tenants to review and then come in and sign and get a fully executed copy. Ms. Kocherhan testified that she gave the draft copy to Petitioner in her June 7, 2022 correspondence, but that Petitioner gave her the document back and she never heard from him to schedule a time to sign the fully executed lease.

As to the trash and water allegation, Ms. Kocherhan testified that water service cannot be turned off to any single unit, and that Petitioner’s trash service had not stopped, but rather, Petitioner kept his trashcan behind a locked gate that only he could access.

Ms. Kocherhan also testified that in June 2022, she sent a packet containing the policies and Rules and Regulations, along with the draft of the lease, but that Petitioner returned the entire packet to her.

In addition, Ms. Kocherhan testified that she had granted access to Petitioner’s unit to three or four different agents, and never denied access. She also testified that she completes a “four corner inspection” to get the home ready for sale, but that was only completed once the tenant signed a real estate contract which she believed never occurred.

Finally, as to the allegation that she broke into Petitioner’s home, Ms. Kocherhan denied the same and testified that she was not aware that this occurred until it was listed in the original Petition filed in April 2023. Further, she testified that no credit was provided to Petitioner for any reimbursement of stolen property.

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 Petition, 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.”

Petitioner alleged numerous statutory violations by Respondent based upon the complaints outlined in Petitioner’s Petition. Specifically, A.R.S. §§ 33-1413(B), 33-1432(A)(2), (H), 33-1434(A)(2), (3), (7), 33-1436 (A), (B), 33-1452(B), (F)(1), and 33-1453(A).

Notwithstanding his numerous complaints and allegations of statutory violations by Respondent, Petitioner failed to establish by a preponderance of the evidence that Respondent committed any violations of the LTA cited by Petitioner and as set forth herein. As to the lease issue, it was Petitioner who failed to fully execute a new lease as the draft with the blanks was never intended to be a fully completed lease. The tribunal also finds that Petitioner’s water was not turned off by Respondent nor was trash service stopped. Rather, it was Petitioner who had kept his trash bin locked up who frustrated the collection of the same. As to the allegation that the policies, rules and regulations had not been provided, the tribunal finds that Petitioner failed to meet his burden as he was given a packet containing the same, with the lease and he chose to give it back to Ms. Kocherhan. The tribunal also finds that Petitioner failed to meet his burden to demonstrate that Respondent somehow interfered with his real estate agents being able to view the property. And finally, the tribunal does not find Petitioner credible that Ms. Kocherhan broke into his home, damaged his property and then offered to offset the damages with a reduction in his November 2022 rent. There was no evidence provided showing a credit and given the extensive history between the parties it seems unlikely that Petitioner would not have made a police report of the alleged break in.

RECOMMENDED ORDER

IT IS ORDERED that the Director of the Department dismiss Petitioner’s petition against Respondent.

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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, October 25, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Joan Serviss, Director

Arizona Department of Housing

Jason Houston

10540 E. Apache Trail #336

Apache Junction, AZ 85120

[email redacted]

Scott A. Baluha

Zona Law Group P.C.

7701 E. Indian School Road, Suite J

Scottsdale, AZ 85251

[email redacted]

By: OAH Staff