ALJDEC

99F-L989011-BFS · Department of Building and Fire Safety · 1999-02-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|RONNIE AND PAT VALDEZ, |(|Case No.: LTA 98-9/011 | | |(| | |Petitioners, |(|Docket No.: 99F-L989011-BFS | | |(| | |vs. |(| | | |(|Recommended | |DEAN ABEGG, Owner, and |(|Decision and Order | |HOHOKUM VILLAGE MHP, |(| | | |(| | |Respondents. |(| | | |(| | | |(| | | |(| |

HEARING: Tuesday, February 9th, 1999; 9:00 a.m. Appearances: The Petitioners, Ronnie and Pat Valdez, appeared pro personam. The Respondent, Dean Abegg, appeared for Respondents. Administrative Law Judge: Grant Winston

This matter was brought on for administrative hearing February 9th, 1999. Testimony was taken and other evidence admitted. Based on the record taken as a whole, the following Findings of Fact, Conclusions of Law, and Recommended Order are made. FINDINGS OF FACT

1. The Respondent, Dean Abegg, is the owner and manager of Hohokum Village Mobile Home Park (hereinafter “the Village”), located in Tucson, Arizona. The Petitioners, Ronnie and Pat Valdez, are a married couple who own a mobile home situated on a lot in the Village which they rent.

2. The Petitioners first rented the lot and moved their home into the Village approximately two-and-one-half years ago. Then, Respondent did not give them a written rental agreement to sign. In fact, it was not until the Petitioners had resided in the Village approximately one year that Respondent provided a “Mobile Home Park Rental Agreement and Statement of Policy” (hereinafter referred to as “Rental Agreement“) which the parties signed. The Rental Agreement is accompanied by written Rules and Regulations, and a Crime-Free Addendum. The Rental Agreement itself is not a complete document inasmuch as it has many blank spaces where there should be material provisions of any lease, e.g., the date it was executed, the name of the tenants, the premises being let, the number of persons to reside on the premises, the term of the tenancy, and the amount of monthly rent agreed to be paid by the Petitioners. The Crime-Free Addendum to the Rental Agreement is not signed or dated by anyone. Mr. Abegg testified that the Rental Agreement is not a lease, although such testimony is not credible in light of the fact that “rental agreement” is quite an apt definition of the word “lease.” (See also: Conclusion of Law #12, supra.) He maintains that the Valdezes have a month-to-month tenancy.

3. The history of the relations between the parties is not good. The evidence is clear that Respondent Abegg is quite overbearing and obnoxious as a Manager. He intrudes himself into the lives and behavior of the residents of the Village over and beyond what is actually necessary to preserve the interests of an owner and manager of a mobile home park. He is particularly oppressive where the presence of children is concerned. He has been known to disrupt tenants’ quiet enjoyment of the premises in non-emergency situations. On one occasion Mr. Abegg, in no emergency and without notice to the Valdezes, accessed their mobile home and began removing the skirting therefrom whilst Ms. Valdez was inside the home.

4. Petitioners moved from the Village approximately eight months prior to the administrative hearing of this matter. The major portion of their complaint against the Respondent lies in their subsequent frustrated efforts to sub-let or sell their mobile home; efforts frustrated by the actions of Respondent Abegg.

5. One comparatively minor complaint of the Petitioners is the failure of Respondent to post utility rates in a conspicuous place. However, the evidence demonstrated that Respondent has now seen to this posting. Other items in the Petitioners’ complaint are the Lease Agreement’s improper imposition of a guest fee after a guest has been present more than seven days in any calendar month; Respondent’s accessing the mobile home in a non-emergency situation without notice and permission of the Petitioners; the blanks in the Rental Agreement already mentioned; failure to provide utility rate information; improper method of noticing rent increases, and failure to provide the Mobile Home Parks Landlord Tenant Act booklet. The evidence shows, as found at Finding of fact #3, that Mr. Abegg did access the Valdezes mobile home and began removing its skirting without prior notice or permission from the Valdezes in a non-emergency situation. Respondent as much as admits to the failure to provide the booklet in his written response to the complaint by the Petitioners.

6. After moving out, the Petitioners attempted to rent the mobile home to Ms. Valdez’s daughter, Ms. Shannon Watters. Ms. Watters is twenty- six-years-old and the mother of two children. Ms. Valdez desired that her daughter and grandchildren reside in the empty mobile home until it could be sold. Mr. Abegg refused to allow the mobile home to be sub-let to Ms. Watters. It appears from the evidence that his refusal was on the basis of Ms. Watters’s children. Although the Village is not formally an adult-only community by any term in the Lease Agreement or Policies, it is evident that Mr. Abegg has made a considerable effort to make the Village a de facto adult community by purging the Village of residents with children, and refusing admission to prospective tenants with children, such as Ms. Watters.

7. The Petitioners also had arranged for their mobile home to be purchased by Ms. Valdez’s ex-husband, Mr. Carl Whalen. Mr. Whalen has served time in the penal system for conviction of a felony, but is free now. The evidence demonstrates that the Village has and at times material hereto had, other tenants with felony records, with the knowledge and acceptance of Mr. Abegg. Upon receiving the intelligence that Mr. Whalen was Ms. Valdez’s ex-husband, and therefore the father of Ms. Watters, and grandfather of the same grandchildren of Ms. Valdez, and that those children would of course be visiting their grandfather, he denied permission to sell the mobile home to Mr. Whalen, giving as his reason the fact that Mr. Whalen is a convicted felon. The evidence shows that Mr. Whalen is satisfactorily rehabilitated. Mr. Whalen has since made other living arrangements, but remains willing to purchase the Valdezes’ mobile home if possible. The reasonable inference to be drawn from the evidence is that Mr. Abegg does not desire to have Mr. Whalen as a tenant owing to the certainty that children will be frequently visiting him at the Village as a result.

8. Nowhere in the Village’s printed Rental Agreement or Rules and Regulations, which are a part of the Rental Agreement by paragraph 18 of the Rental Agreement and the first paragraph of the Rules and Regulations, is the Village designated as an adult-only community. Ms. Melanie Morriss, the Village’s Assistant Manager, testified that the Village has no policy against having children live there. If that is truly the official position of Mr. Abegg, then he should have no problem with the Valdezes selling their mobile home to Ms. Watters or Mr. Whalen (or any other prospective tenant simply because he or she has children). No evidence was offered from Respondents to show why those two particular individuals might otherwise be properly refused tenancy at the Village.

9. The Rental Agreement, although incomplete in many material contract terms, and the Rules and Regulations, does address the main issues of this complaint: subletting and selling the mobile home to a third- party who wishes to become a tenant of the Village after the sale.

10. As to subletting, the Rental Agreement states at paragraph 14: “Tenant shall have neither the right nor the power to assign, rent, or sublet his mobile home or space in the Park.” Paragraph 21 states in part: “Nothing contained herein shall be deemed to give Tenant the right to assign or sublet the Premises.” Thus it is made abundantly clear that a tenant has not the right to sublet the premises. However, elsewhere, in the Rules and Regulations, it is clear that a tenant may sublet, providing he or she secures the permission of the owner of the Village. Paragraph 24K of the Rules and Regulations states in pertinent part: “Tenant . . . . may NOT sublet . . . . without the explicit written permission of the Management.”

11. As to selling the mobile home to a third party, the Rental Agreement makes address at paragraph 16. The first two sentences state “Tenant may sell his mobile home at any time pursuant to the terms and conditions set forth in this Agreement and the attached Rules and Regulations. Tenant must, however, give written notice of the sale to Management before the close of the sale.”

12. Paragraph 16 continues to address the prospective sale of the mobile home to a third party who then wishes to become a tenant of the Village. The prospective new tenant and purchaser must, prior to close of the sale, complete an application for tenancy, be approved by the Village, execute a Rental Agreement, and execute and deliver to the Village a copy of the Rules and Regulations. Thus the Village does reserve the right of prior approval of prospective new tenants in these situations. 13. Another provision of the Lease Agreement bearing on the issues at hand is paragraph 23. That paragraph is entitled “Interpretation,” and, in effect, incorporates the Arizona Mobile Home Parks Residential Landlord and Tenant Act (A.R.S. §33-1409 et sequitur) as a part of the Lease Agreement. It goes on to provide that “Should a contradiction arise between this Agreement and [the Act’s] provisions, the latter shall apply.”

Conclusions of Law

1. This administrative hearing was held under authority of and pursuant to A.R.S. §41-1092, and the Arizona Mobile Home Parks Residential Landlord and Tenant Act, A.R.S. §33-1401 et sequitur (“the Act”).

2. Subject-matter jurisdiction vests in the Department of Building and Fire Safety under authority of A.R.S. §33-1406 and A.R.S. §33-1408.

3. Respondent Mr. Dean Abegg is a landlord within the meaning of A.R.S. §33-1409.13.

4. The first and foremost legal conclusions needed to be drawn are relative to the Rental Agreement and Rules and Regulations. The evidence is clear that these documents are flawed to the degree where they cannot be held to constitute an express contract. Too many material terms were left blank. Also, the Act requires many of the omitted terms to be included. See: A.R.S. §33-1413.A. and B. Thus the Lease Agreement and Rules and Regulations are not an express contract. However, this does not mean that no lease contract between the parties can be found.

5. The absence of an express contract does not foreclose the possibility of a contractual relationship, because the parties may, by their acts and conduct, create an implied contract. See: Jurrens v. Lorenz Mfg. Co. of Benson, Minn., 578 N.W.2d 151 (S. D. 1998). Contracts implied in fact are those inferred from the statements or conduct of the parties. Marsh v. Digital Equipment Corp., 675 F.Supp. 1186 (D.Ariz. 1987). Still, the conduct from which the inference may be drawn must be sufficient to support the conclusion that the parties expressed a mutual manifestation of intent to enter into an agreement. Shaw v. Smith, 964 P.2d 428 (Wyo. 1998).

6. In addition to express and implied-in-fact contracts, there are also contracts implied by law. A distinction exists between contracts implied in fact and those implied in law. A contract implied in fact is a true contract, an undertaking of contractual duty imposed by reason of promissory expressions, whereas a contract implied in law is created to achieve just results even though there is lacking partial or total expression of assent by the parties. Contracts implied in law are sometimes referred to by the term “quasi- contracts.” Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 747 P. 2d 1218 (1987).

7. Thus it seems clear from the Lease Agreement and the Rules and Regulations that the Petitioners and Respondents herein had, if not a contact implied in fact, at the bare minimum a contract in law. It is obvious they intended to enter into a contractual relationship, and related to each other contractually. For these facts, guidance as to what these parties intended, and therefore, what governs in these legal conclusions, may be gleaned from those instruments, even though they do not contain all the essential elements of a lease agreement under A.R.S. §33-1413.A. and B.

8. Moreover, the Act itself provides for the application of the principles of law and equity to disputes arising under its provisions. A.R.S. §33-1403. One principle of equity is to regard that done which ought to be done. U.S. v. Hoffman, 170 Ariz. 477, 826 P.2d 340 (Ariz.App.Div.2 1992), Heller v. Levine, 7 Ariz.App. 231, 437 P.2d 983 (1968). Although lacking an express contract, equity should deem the parties to have entered into a contract. Additionally, equity regards the substance rather than the form of a transaction, and will go behind mere form to impose liability or defeat an unlawful claim. Merryweather v. Pendleton, 91 Ariz. 334, 372 P.2d 335 (Ariz. 1962), Kennedy v. Morrow, 77 Ariz. 152, 268 P.2d 326 (Ariz. 1954). Equity will not suffer a wrong without a remedy. Chantler v. Wood, 6 Ariz.App. 134, 430 P.2d 713, opinion supp. 6 Ariz.App. 325, 432 P.2d 469 (Ariz.App. 1967). Therefore, these equitable principles, recognition and application of which are provided by the Act, make it proper to draw conclusions from the Lease Agreement and Rules and Regulations, and for the agency to order remedies in furtherance of them.

9. Petitioners, in their complaint, listed seven specific allegations of violation of the Act by the Respondents. Conclusions as to these will be drawn prior to those regarding the sale and subletting of the Petitioners’ mobile home.

10. First, Petitioners complain that Respondents violate A.R.S. §33- 1414.A.5. in providing for the assessment of a guest fee after a guest has visited the tenant for more than seven days in any calendar month. See: Rules and Regulations paragraph 28. This provision conflicts with the statute cited by Petitioners in that the statute makes the time period for guests to be on the premises without assessment of a fee fourteen days. The statute must here prevail over the lease. The shorter permitted guest period violates public policy as expressed in the statute. Also, the Lease Agreement at paragraph 29 itself serves to strike the offending paragraph 28.

11. Second, Petitioners complain that Respondents violated A.R.S. §33- 1453.A. That statute provides that “The landlord has no right of access to a mobile home owned by a tenant.” The facts prove that when Mr. Abegg, in a non-emergency situation, accessed Petitioners’ mobile home to remove the skirting therefrom, without prior agreement to do so being given him by Petitioners, he did violate this section of the Act.

12. Third, Petitioners complain of the Rental Agreement’s blanks. This complaint is well-founded, as has been described at length herein. Respondents’ Rental Agreement, having the several blanks it has, clearly violates A.R.S. §33-1413.B. All Rental Agreements for tenants in the Village must be executed without blank spaces. Despite Mr. Abegg’s insistence that the Rental Agreement is not a lease, it is concluded as a matter of law that it is nothing else but a lease. Common sense dictates this, as stated in the findings of fact, as well as the statutory definition in the Act at A.R.S. §33- 1409.24, which simply provides that “Rental Agreement” means “leases.”

13. Fourth, Petitioners alleged a violation of A.R.S. §33-1432.D., in that Respondents did not post in a conspicuous place the current utility rates. It appears from the evidence that the Respondents now have done this.

14. Fifth, Petitioners complain of a violation of A.R.S. §33-1413.01.A., the failure to clearly provide for water charges. There is insufficient evidence of record to draw a conclusion as to this allegation.

15. Sixth, Petitioners allege that Respondent violated A.R.S. §33-1432.E. by failing to give proper notice of rent increases by putting the notice in their mailbox without postage affixed thereto. There is insufficient evidence of record to draw a conclusion as to this allegation.

16. Seventh, Petitioners allege that Respondents violated A.R.S. §33- 1432.F. in that they never provided Petitioners a copy of the Act’s booklet published by the Secretary of State. Based on the Respondents’ response to Petitioners’ complaint, it appears that this was not done, and therefore Respondents’ violated this section of the Act.

17. Now, as to the complaint that the Respondents are interfering with the Petitioners’ ability to sell their mobile home, it must first be concluded that the Respondents have no legal authority to prohibit the sale of mobile homes between willing buyers and willing sellers. Petitioners, as well as any other owner/tenants in the Village, can sell their mobile home to anyone who would and could buy it, without necessity of Mr. Abegg’s blessing or that of any other managing agent for the Village. Thus, paragraph 16 of the Lease Agreement where prior written notice of the sale must be given to the Village Management before a tenant/owner may sell his or her own mobile home is void. See: A.R.S. §33-1452.D.3. That same statute, however, does provide Respondent with some rights in cases where the prospective purchaser seeks to become a resident of the Village. In those cases the Act provides the Respondent with the right to give or withhold his approval of the prospective purchaser to become a tenant in the Village. However, the Respondent, according to the statute, cannot unreasonably withhold such permission from the would-be tenant. Thus the question now becomes: Did Respondents unreasonably withhold permission from Ms. Watters and Mr. Whalen to become tenants of the Village upon the prospective purchase of the Valdezes’ mobile home? The conclusion, in both cases, is that he did. The only evidence was that Ms. Watters and her family would have been perfectly satisfactory tenants, and Respondents offered no evidence of the undesirability of the Watters family. Likewise, although a convicted felon, the evidence showed that Respondents had allowed other convicted felons to become and remain residents of the Village during the time in question, and further showed that Mr. Whalen had rehabilitated. Respondents unreasonably withheld permission to become tenants from Ms. Watters and Mr. Whalen. Respondents’ protection against new tenants who prove to be undesirable is afforded at A.R.S. §33-1452.B. To the extent that paragraph 16 of Respondents’ Lease Agreement conflicts with A.R.S. §33-1452.D. it is void.

18. As to the complaint that the Respondents are unjustly interfering with the Petitioners’ ability to sublet their mobile home pending its sale, it is first observed that the Act, at A.R.S. §33-1454, provides that “Unless otherwise agreed, the tenant . . . . . may sublet, upon written agreement with the park management.” As found hereinabove, the Village’s Lease Agreement contains provision that denies the right of a tenant to sublet (paragraphs 14 and 21). The Rules and Regulations (a part of the Lease Agreement) softens this a bit by stating at paragraph 24K that subletting may be done with the “explicit written permission of the management.” This latter provision is effectively the same as the statute, and it should be given effect here. Unlike the statute which limits the discretion of the Respondent/landlord to deny prospective purchasers of mobile homes within the Village tenancy therein, this statute, and the Rule simply says that subletting must be done upon written agreement. Thus there is no evidence that the Respondents violated the Petitioners’ rights under the Act or as stated in the lease contract, by withholding their permission to sublet the mobile home.

19. The evidence herein revealed a pre-printed rental agreement (lease) being used by the Respondents which, in at least the ways addressed herein, violates the Act’s provisions at A.R.S. §33-1413. The reasonable inference is that the other rental agreements used by Respondents repeat these violations, and Respondents should reform their lease agreements to make them conform to the requirements of the Act.

20. The Act provides for injunctive relief to the Petitioners for Respondents’ violations of A.R.S. §33-1434 or the lease agreement. Such is justified by the facts of this case.

21. Recovery of the Petitioners’ filing fee and the imposition of administrative penalties are provided by A.R.S. §41-2198.02. Such are justified by the facts of this case.

Recommended Order

In view of the foregoing it is recommended that the Department of Building and Fire Safety order as follows:

1. Respondents, Dean Abegg and Hohokum Village Mobile Home Park shall reimburse Petitioners, Ronnie and Pat Valdez, the amount of their filing fee expended to bring this administrative complaint, which is fifty dollars ($50.00);

2. Respondents are to be assessed civil penalties as follows: for violation of A.R.S. §33-1453.A., fifty dollars ($50.00); for multiple violations of A.R.S. §33-1413.B., one hundred and fifty dollars ($150.00), for violation of A.R.S. §33-1432.F., fifty dollars ($50.00), and for unreasonably withholding permission from prospective purchasers of the Valdezes mobile home to become tenants of the Village, and otherwise improperly interfering with the Valdezes attempts to sell their mobile home, two hundred dollars ($200.00);

3. Respondents are enjoined from further interfering with the Petitioners’ right to sell their mobile home to any willing buyer; 4. Respondents are enjoined from further unreasonable withholding of permission from Ms. Shannon Watters and her immediate family to become tenants of the Village;

5. Respondents are enjoined from further unreasonable withholding of permission from Mr. Carl Whalen to become a tenant of the Village;

6. All civil penalties are to be paid to the Department of Building and Fire Safety, and the filing fee cost paid to the Petitioners with proof of payment of same furnished to the Department, all on or before April 1st, 1999.

Dated this 16th day of February, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of February, 1999, to:

N. Eric Borg, Director Department of Building and Fire Safety ATTN: Gail Hinckley East Virginia, Suite 100 Phoenix, AZ 85004

Transmitted by:

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