ALJDEC

97F-L967024-BFS · Department of Building and Fire Safety · 1997-11-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 31, 1997

APPEARANCES: Petitioner was represented by its attorney Michael Parham; Respondents were represented by attorney Michael W. McNamara.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

J.J. Hegel (“Landlord”), as landlord for Petitioner, brings this action against the McNamaras (“Tenants”) to enforce a policy against lattice-enclosed carports at Paradise Peak West Mobile Home Community (“Paradise Peak”). The parties presented evidence and testimony at the hearing and, based upon the entire record, this Administrative Law Judge, acting as a Mobile Home Parks Hearing Officer, makes the following Findings of Fact, Conclusions of Law, and Order finding violations by both parties.[1] FINDINGS OF FACT 1. Tenants moved into Paradise Peak in 1988. They enclosed their carport with wooden lattice, stained a natural wood color. The lattice was allowed by Landlord at that time and other residents also put up lattice in various places, including carports, at their homes. Until 1995, Paradise Peak rules did not specifically refer to latticework. Generally, though, the rules have always required that homes be kept in good condition. 2. In 1995, the Paradise Peak rules were changed to specifically mention carport enclosures in Rule 2.4. An identical provision exists in the 1996 rules, the rules that are directly relevant to this case. Rule 2.4 provides, in part, that “[n]o enclosure of carports, slats, trellis’ or siding will be allowed without Park owner’s approval.” This provision does not explicitly prohibit lattice-enclosed carports. However, Landlord testified at the hearing that she does not approve enclosing an entire carport with lattice, but allows a small amount of lattice, trellis, or other material to support vine growth or in other particular instances. Her apparent intent is to have open carports at Paradise Peak and to prohibit lattice-enclosed areas. 3. Regarding tenants that had existing lattice at the time the 1995 rules became effective, Landlord decided to “grandfather” them in. That is, Landlord took the position that existing lattice could stay in place as long as it was maintained and remained in good repair. However, once it fell into “disrepair” as determined by Landlord, it was to be removed rather than repaired or replaced. Landlord began enforcing this policy immediately on a case by case basis. Landlord did not send written notification of the “lattice policy” to any of the residents. 4. In January 1997, Landlord informed Tenants for the first time in writing that they were to remove the lattice from their carport because it was “unsightly” and “deteriorated.”[2] At that time, Tenants’ lattice was weathered and its color was starting to fade, but it was not damaged or in disrepair in any other way. 5. Tenants were in the process of repainting their house. Instead of removing the lattice, they hired Southport Restoration Company to paint it the same color as the house, which the company did. The evidence shows that the lattice was painted only, no other additions or alterations were performed. 6. Tenants did not notify or get written approval from Landlord to have Southport on the premises to do the painting, as required by Paradise Peak rules. 7. In response to Tenants’ actions, Landlord sent several letters to Tenants, trying to accomplish removal of the lattice. At first, Landlord threatened eviction, but Landlord has since stated that her main objective is removal of the lattice, not eviction. To that end, Landlord brought this action, asking that this tribunal order Tenants to remove the lattice. CONCLUSIONS OF LAW Jurisdiction 1. The Arizona Department of Building and Fire Safety referred this case to the Arizona Office of Administrative Hearings pursuant to A.R.S. §§ 41-2198 and 41-2198.01(D). This Office has jurisdiction to hear and decide the petition pursuant to A.R.S. §§ 41-1092.02, 41-2198, and 41- 2198.02. Applicable Law 2. This case is governed by the Arizona Mobile Home Parks Residential Landlord and Tenant Act (“the Act”), Arizona Revised Statutes Title 33, Chapter 11 (A.R.S. §§ 33-1401 through 33-1491). A.R.S. § 33- 1403 authorizes the use of equity principles in enforcing the Act. A.R.S. § 33-1410 imposes an obligation of good faith on both tenants and landlords whose relationship falls under the Act. Thus, this Administrative Law Judge must infer an obligation of fairness in all interactions between Landlord and Tenants, and particularly in construing any contract provisions or rule requirements. A.R.S. § 33-1452 requires landlords to adopt written rules applicable to tenants. One requirement for rules is that they are to be clear, not vague, so that they fairly inform tenants of their obligations. A.R.S. § 33-1452(A)(4). Subsection (C) of that statute requires written notice of any rule additions, changes, or amendments and makes unenforceable any rule that is unfair. This case is also governed by the rental agreement between the parties and the rules in effect for 1996-97 (Exhibits 1 and 2). The 1996- rental agreement between Landlord and Tenants contains several provisions that are relevant to this case. Section 9.2 requires Tenants to “maintain and keep the premises in good repair. . .” Section 9.3 states the following: “In no event shall any rule be changed, deleted or amended without notice being furnished to all Residents thirty (30) days before the new rules or regulations become effective.” As noted in the factual findings above, Rule 2.4 of Paradise Peak’s rules, concerning enclosed carports, is applicable. Other relevant rule provisions will be discussed below. Violations 3. The evidence shows that Landlord violated A.R.S. § 33-1452 and Section 9.3 of the rental agreement by amending the rules without giving written notice to Tenants. Specifically, Landlord’s unwritten lattice policy requiring removal of grandfathered lattice that she determines is in disrepair, without an opportunity to repair it, was not sent in writing to Tenants until it was “too late.” This lack of written notice violated the statute. Furthermore, the rule itself is unfair. Thus, the lattice policy is not enforceable against Tenants. 4. The evidence shows that Tenants violated the rental agreement and the spirit of the rules by failing to notify Landlord that Southport, a licensed contractor, had been hired to perform work on Paradise Peak property. This violation, however, is minor and resulted in no actual harm to anyone. Discussion 5. This case can be boiled down to a simple issue, as stated by Landlord’s counsel in closing argument: “Was there fair notice?” In this Administrative Law Judge’s judgment, there was not fair notice. Tenants were caught in an awkward position. They were required by contract and rule to keep their property in good repair. Since the concept of good repair is highly subjective,[3] and Landlord is the sole determiner of “disrepair,” Landlord quite properly allows any tenant an opportunity to repair items that she feels have fallen into disrepair, except for lattice. With respect to grandfathered lattice that falls into disrepair, Landlord requires removal, yet she did not notify Tenants of that policy in writing. Perhaps if they had been notified of the drastic consequences, they would have been more diligent in finding out when Landlord thought the lattice was in disrepair. Furthermore, to prohibit Tenants from repainting the lattice, while at the same time requiring that they keep it in good condition, is unfair and inconsistent. Keeping it in good condition would necessarily require that it be repainted. This Judge places no significance on the fact that the lattice was painted a different color from its original color, for two reasons. First, the lattice was painted the same approved color as the house trim. Second, Landlord’s lattice policy requires maintenance and upkeep, but does not necessarily prohibit changing the color of the lattice as part of the maintenance. To require that Tenants maintain the lattice only in its original color would be foolish. If, before it “fell into disrepair,” Tenants had requested approval to paint the lattice the same color as the house trim, could Landlord have reasonably refused? No. Tenants are free to paint their home and its appurtenances any color that fits within Paradise Peak’s color scheme. In short, Landlord’s lattice policy is unenforceable against Tenants because it was not put in writing and was unfairly applied to Tenants. This Administrative Law Judge does not condemn the use of phrases such as “good repair,” “well maintained,” and “disrepair.” Even though they are somewhat vague, they convey enough meaning that a typical resident would get the idea. Mobile home park rules are not required to be hyper- technical or mindnumbingly specific. However, if a park is going to use those types of phrases, it is only fair to give residents an opportunity to correct. In this case, Landlord used subjective terms in its unwritten policy and then invoked a drastic penalty -- removal -- without an opportunity to correct. Those actions were unfair to Tenants. Tenants, however, also did not meet their obligations because they failed to inform Landlord that Southport would be coming on the premises to do contracting work. Although the Tenants can nit-pick about whether painting the lattice was an improvement, addition, or alteration, the rental agreement and park rules clearly manifest a duty to inform Landlord about changes to real property within the park, especially when licensed contractors are hired.[4] Available Remedies 6. By the provisions of A.R.S. § 41-2198.02(A), this tribunal may order any party to abide by the statute or contract provision at issue and may levy an administrative penalty for each violation. Penalties 7. Landlord/Petitioner has not prevailed. This Administrative Law Judge will not order Tenants to tear down their lattice. Tenants did not violate the lattice provisions of the rules and their lattice is not presently in disrepair. Therefore, Tenants are not required to reimburse the $50 filing fee to Landlord under A.R.S. § 41-2198.02(A). Landlord loses the $50 fee. 8. Furthermore, because Tenants have committed a violation as found above, a penalty is appropriate. Tearing down the lattice is not warranted for a minor violation. Rather, Tenants are hereby ordered to pay an administrative penalty to the Arizona Department of Building and Fire Safety in the amount of $25.. Pursuant to A.R.S. § 41-2198.02, the penalty will go into the state general fund to be used to offset administration costs. ORDER Based on the above findings and conclusions, IT IS ORDERED that Landlord shall comply with the statement in her petition for hearing by giving written notice to Tenants that the 14/30 notice has been satisfied. IT IS FURTHER ORDERED that Tenants shall pay the $25 penalty imposed above no later than January 15, 1998.

Done this 26th day of November 1997.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original Decision and Order mailed this ___ day of November 1997, for distribution to the parties, to:

Mr. N. Eric Borg, Director ATTN: Dawn Castle Arizona Department of Building & Fire Safety E. Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________ ----------------------- [1] Because Tenants’ character was not at issue, Exhibit G, the character reference letters, were not given much weight by this Administrative Law Judge. Furthermore, a few days after the hearing closed this Office began receiving many letters from Paradise Peak residents. The first letter was returned to the sender with an explanation regarding rejection of evidence after closure of a hearing. However, other letters soon followed. Rather than return all of them, they have been placed in the case file. This Judge has only glanced at them; absolutely no weight has been given to them. [2] Exhibit 12, Landlord’s August 5, 1996, letter to Tenants does not directly or indirectly mention the lattice and is therefore not material. [3] Indeed, this Judge’s judgment as to good repair differs from Landlord’s. For example, this Judge has found that Tenant’s lattice was weather-worn in January 1997, but not in disrepair. Furthermore, with such a highly subjective concept as “disrepair,” Landlord’s judgment is subject to criticism based on consistency; to wit, the lattice shown in the Exhibit B photograph of space #179 is also weather-worn, yet Landlord testified that it was not in disrepair. [4] These conclusions apply only to the facts of this case. Contrary to statements made at the hearing, this case has no precedential value; it does not apply to any other residents’ set of circumstances and is not binding on any other court or ALJ.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826