ALJDEC decisions subject to certification as final

23F-LTA2324001-ADH · Arizona State Department of Housing - LTA · 2023-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sal Guerrero, et al.,

Petitioner,

Shady Haven MHP, et al.,

Respondent.

No. 23F-LTA2324001-ADH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 13, 2023, with record held open to November 17, 2023.

APPEARANCES: Sal Guerrero represented himself. No person appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Record plus documents presented by Petitioner (see Exhibit List). _____________________________________________________________________

FINDINGS OF FACT

On or about August 15, 2023, 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”). Petitioner alleged that Respondent violated A.R.S. §§ 33-1434(A)(1), (2) and (4), 33-1471, and 33-1436, through various actions; Petitioner supplied three documents with the Petition. Interspersed within his filed Petition, Petitioner included a typewritten statement setting forth what appears to be a listing of exhibits which were not included in the Petition filing. Regarding any complaints and issues, the Petition itself is only specific as to water damage and premises safety and fitness issues.

The Department assigned Case No. LTA 23-24/001 to Petitioner’s Petition and, by letter dated August 31, 2023, sent by certified mail to Respondent, notified Respondent of the Petition.

Respondent’s Owner and Property Manager filed a response which included multiple documents asserted in support of Respondent’s responses.

Subsequently, the Department referred the matter to the Office of Administrative Hearings (“Tribunal”), an independent state agency, for an evidentiary hearing.

On or about October 19, 2023, the Department sent a Notice of Hearing to the parties setting an administrative hearing on November 13, 2023 regarding the issues raised in the Petition.

At the time set for hearing, no person appeared on behalf of Respondent. After waiting a minimum of fifteen minutes, with no appearance by Respondent, the hearing convened and the Tribunal admitted relevant testimonial and documentary evidence.

Petitioner has been living in Shady Haven Mobile Home Park (Park) in Tucson (City) for over 30 years. After he got married, he purchased a new manufactured home and, in 1998, the new double-wide manufactured home was installed on Lot #2 in place of his prior single wide.

The Park changed hands at some point in the early 2000’s; Petitioner gave two dates, 2000 and 2002. The Park owner is Greg Girard.

In the past, Petitioner has been the Resident Park Manager at times and, thus, is aware of prior Park processes and the changes over the years.

WATER ISSUES

Petitioner alleges that, every time it rains, the water collects and pools on the ground both under his home and in all areas around the home, causing multiple issues. One allegation is that, due to the water pooling, his home is sinking and has had to be relevelled multiple times, which has been costing him money. Another allegation is because the home is sinking, the drywall in the home is cracking at the corners and ceiling; as part of this damage, Petitioner indicated that his plastic skirting is also bending/bent. Petitioner argues that Respondent is responsible to repair the water issues and the damage to his home caused by the water issues.

Petitioner stated that, as to this water collection and pooling issue and any damages, Respondent had simply responded to him that Petitioner owns the home, that Petitioner is/was responsible for the level or grade of Lot #2 on which he had installed the new home, and that the Respondent is not responsible.

Petitioner alleges that the drainage in the Park is not adequate and the Park is responsible to keep the premises in a fit and habitable condition. Petitioner noted that one reason for the water drainage issue is that the Park entry road is at a higher grade level than the area upon which the homes sit and the excess water runs off the road onto the homes’ grounds.

Petitioner indicated that he called the City and was told that the water runoff and water from rains is only a “flood” if the water comes into the homes.

Petitioner argued that the City approved the placement of the new home on Lot #2 and that Respondent, as Owner, is responsible to maintain all the premises that the Park owns, i.e., the lots, because Petitioner has no authority to improve the property.

Petitioner’s Petition is not specific as to any other issue. However, at hearing, Petitioner raised August rent payment and/or collection issues, which appeared to be relevant because the rent issue apparently arose just before the Petition was filed. Therefore, the Tribunal allowed testimony and evidence thereon.

RENT ISSUES

Petitioner’s issues with paying rent and whether his payment arrived to the landlord on time became an issue only recently.

Petitioner receives his social security disability on the 3rd of a month and, for years, that is when he mailed the rent in and, he indicated, it was never a problem before if it was a day or two late. Petitioner stated that this only became an issue recently as to his August rent.

Under the 1999 rental agreement, the tenancy is month to month and, per the Rental Agreement, rent is due by 5:00 p.m. on the 1st day of the month or else it was deemed to be late; however, the lease essentially provides for a grace period of five more days. In the event the rent was not received by 6th, the tenants had agreed to pay a late fee of $25.00 plus $5.00 per day up to a 20% of rent amount. Further, on the 7th day of the month, rent payment would be accepted by the Manager in person only during the hours of 8:00 a.m. to 5:00 p.m.

Under the 2004 rental agreement, the tenancy is month to month and, per the Rental Agreement, rent is due on the 1st day of the month. The lease essentially provides for a grace period of five more days. In the event the rent was not received by 5:00 p.m. on the 6th day of the month, there would be a late charge fee of $25.00. Further, in the event the rent was not received by 5:00 p.m. on the 11th day of the month, there would be a late charge fee of $50.00. Finally, In the event the rent was not received by 5:00 p.m. on the 16th day of the month, there would be a no-excuses “unpaid” late charge fee of $75.00.

Under the 2004 rental agreement, the rental check was to be made payable to the Owner and sent to a particular street address, with the proviso that any rent payment lost in the mail would be treated an “unpaid.”

In 2005, the rent payment process changed. The tenants began receiving an invoice with a specific envelope to be used; the envelope was pre-printed addressed to a P.O. Box. However, Petitioner preferred to use his own envelopes, writing out the P.O. Box address and, apparently, mailing the rent by certified mail. Sometimes, Petitioner’s rent mailings were being returned to him with yellow return-to-sender labels; in June 2022, a mailing came back to Petitioner with a return label dated July 17, 2022. Sometimes in the past, when the rent was late-received, the Manager had waived the late fee.

For August, the documents are not consistent as to when Petitioner posted his August rent. At hearing, Petitioner provided the following chronology and information:

Petitioner provided a copy of an August post-marked envelope; however the “day” is not legible. Petitioner wrote thereon that this mailing was hand delivered back to him in person by the Manager.

Petitioner apparently received a late rent notice on August 7, 2023.

Petitioner provided a copy of a mailing post-marked August 7, 2023, by certified mail, which he indicated was later returned to him with a yellow “R-T-S” label dated August 17, 2023.

On August 15, 2023, the Manager came to his home, and wanted a late fee of $35.00 and an additional “delivery” charge of $35.00 for the late August rent.

On August 16, 2023, Petitioner wrote another rent check, trying to get the Owner to accept it as a rental payment.

On August 25, 2023, Petitioner mailed the September rent payment.

On August 30, 2023, the Manager accepted the August rent.

Petitioner did pay the $25.00 late-rent fee but refused to pay the other $35.00 charge.

Overall, Petitioner’s complaint is that Respondent is harassing him regarding the rent and the way in which he pays the rent; further that the Owner continues to direct the Manager to demand the rent payments from Petitioner despite the fact that he is paying the rent.

Petitioner stated that he now sends in the rent for the coming month on the 23rd or 25th or 26th of the prior month.

Petitioner’s Petition is not specific in many ways. At hearing, Petitioner argued there was a sewer line issue raised in the third box on page 3 of the Petition. Because a sewer issue appears to be relevant to fitness and safety issue, the Tribunal allowed testimony and evidence thereon.

SEWER ISSUES

Regarding the sewer line, Petitioner argued that sewer line is old and he often experiences slow toilet operation within his home. Petitioner argued that Respondent should be required to clean out the sewer line “next to the next home across the street” like the prior owner used to do. Petitioner indicated that, when he was the Manager, that was the way the sewer lines were treated to remain better flowing.

Petitioner stated that, when his new home was installed, there was a “cleanout” attached to the home but that, since 2022, there is now a canister in place of the cleanout. Petitioner argued that Respondent will not allow him to have a “cleanout.” Petitioner stated that plumbers will not snake out the canister.

Overall, Petitioner requested that the Tribunal order Respondent to correct the water drainage issues, fix the damage to his home, and to fix the sewers by relocating the sewer line to/along Columbus.

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.”

A.R.S. § 33-1434 provides:

A. The landlord shall:

1. Comply with the requirements of all applicable city, county and state codes materially affecting health and safety.

2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. ...

4. Maintain in good and safe working order and condition all swimming pool, shower, bathhouse, electrical, plumbing and sanitary facilities, including the recreational hall or meeting facilities supplied or required to be supplied or maintained by the landlord.

A.R.S. § 33-1471 provides:

A. Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement, the rules and regulations or statements of policy, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days. If there is a noncompliance by the landlord with section 33-1434 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than twenty days after receipt of the notice if the breach is not remedied in ten days. The rental agreement shall terminate and the mobile home space shall be vacated as provided in the notice subject to the following:

1. If the breach is remediable by repairs or the payment of damages or otherwise and the landlord adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate.

2. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.

B. Except as provided in this chapter, the tenant may recover damages, and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or section 33-1434.

C. The remedy provided in subsection B of this section is in addition to any right of the tenant arising under subsection A of this section.

D. If the rental agreement is terminated, the landlord shall return all deposits

less reasonable damages.

A.R.S. § 33-1436 provides:

A. Before execution of the rental agreement the landlord or any person authorized to enter into the rental agreement shall provide the tenant with the statements of policy of the mobile home park and the date of expiration of each statement. The landlord or any successor in interest shall not delete or amend any statement of policy while it is in force.

B. The statements of policy shall be attached to the rental agreement and shall include a statement of the following: ....

6. The improvements required as a condition of tenancy. If consistent with the rental agreement, the statement of policy may require improvements that the tenant will be required to furnish, install and maintain to the mobile home space being rented and that constitute permanent improvements that cannot be removed at the expiration of the rental agreement including the estimated cost of each permanent improvement. Any change in a statement of policy regarding permanent improvements does not apply to an existing tenant or to any renewal of a rental agreement by an existing tenant.

C. At least sixty days before the expiration of a statement of policy, the landlord shall notify all of the tenants of any new statement of policy.

D. Beginning on January 1, 2000, a landlord may have only one set of statements of policy in effect at any period of time and that set of statements of policy applies to all tenants. A landlord with more than one set of statements of policy in effect on January 1, 2000 shall provide to all tenants by February 1, 2000 a copy of the set with the longest expiration date and that set of statements of policy applies to all tenants at that park.

During his testimony, Petitioner made no connections to any particular statutory provision regarding the alleged water runoff, collection or pooling complaint issues or regarding the sewer complaint issues. Regarding A.R.S. § 33-1434(A)(1), Petitioner did not provide any applicable city, county or state codes regarding health and safety to which Respondent does not comply as to water issues and sewer lines in the Park.

A.R.S. § 33-1471 is applicable only in circumstances when a tenant is seeking to break a lease due to the alleged violations. No such circumstance appears to be in play in the instant case.

Regarding A.R.S. § 33-1436 and any Park policies about responsibility for improvements, Petitioner provided a copy of the 2004 Rental Agreement effective May 1, 2004, to which was attached the January 1, 2004 Park Rules and Regulations as well as the Park Statement Policy. The Rental Agreement requires that a tenant must obtain the Owner’s prior written consent before making any alterations, additions or improvements to the Park property; such improvements become the property of the Park at the end of the lease term. The Park Rules and Regulations also require that any “improvements and alterations to the lot and home” requires prior written consent and prior written approval of “Management.” Finally, tenants are required to maintain the “lot, home and all improvements” thereon to reflect a clean, attractive, and well-kept appearance at all times.

Regarding rent payments and the actions taken by Respondent with respect to August 2023 rent, the hearing record demonstrated that Petitioner did not follow the lease requirements. While understandable due to timing of his disability payments, Petitioner’s mailing of the rent checks on that 3rd day of the month simply does not assure that Respondent will receive the rent by the grace period deadline or in time to avoid possible penalty. The imposition of penalties is clearly within the purview of the Respondent’s Lease Agreement. Now that Petitioner had adjusted his mailing time frame, the issue of vexing penalties should clear up for Petitioner.

Petitioner alleged numerous statutory violations by Respondent based upon the complaints outlined in Petitioner’s Petition. However, despite the complaints and allegations of statutory violations by Respondent, Petitioner failed to establish by a preponderance of the evidence that Respondent committed the alleged violations of the LTA that were cited by Petitioner and as set forth herein. Therefore, based on the hearing record, the Administrative Law Judge concludes that Petitioner’s Petition should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that Petitioner’s Petition against Respondent 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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, December 8, 2023.

/s/ Kay A. Abramsohn

Administrative Law Judge

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

Joan Serviss, Director

Arizona Department of Housing

[email redacted]

Sal Guerrero

[email redacted]

Shady Haven MHP

Attn: Greg Girard

2420 N. Pantano Road

Tucson, AZ 85715

By: OAH Staff