- Pass-Through Fees
- The park has notified us they will be surcharging us for repaving the park streets, above and beyond what we pay for rent. Can the park charge separate “Maintenance” or “Pass-through” fees on top of the rent?
- Yes, if the resident’s lease or rental agreement – that they have signed – provides for assessments or fees for maintenance or other things. But if not mentioned in the lease, a new fee would have to be for a service actually rendered, such as trash pick-up, and would require a 60-day advance written notice. If the rental agreement does not include fees for certain maintenance or repairs in the park, the park could not legally charge them without the 60-day notice, as it would be a breach of the existing rental agreement. However, if they sign a new lease or rental agreement that includes these fees, residents are agreeing to pay them and will be subject to them. State law does not require a notice requirement for an increase in an already existing fee, although legislation attempting such regulation was passed by the Legislature and vetoed by the Governor (AB 2374, Umberg). Those local jurisdictions with mobilehome park rent control may regulate fees or pass-through costs which parks charge their residents. Some ordinances, for example, distinguish capital improvements from maintenance, allowing pass-through of certain capital improvements amortized over a period of time, but not maintenance. State legislation by Assemblywoman Patricia Wiggins a few years ago would have also written such a provision into state law but the bill died due to opposition from park owners and other property interests.
Editor’s Note: Unfortunately a portion of the answer was not printed last month, so it is reprinted again in its entirety here.
- Park Utility Costs
- Utility bills charged to residents in our park have skyrocketed recently and the local utility says park residents are not their customers and we can only speak to the park owner or management. Is there any recourse for utility overcharges in mobilehome parks?
- Most parks are so-called “master-meter” operators, which own, operate and maintain the electric, gas and water distribution system within the park and bill their residents with the monthly rent statement. Although under the Public Utilities Code master-meter customers are supposed to charge no more than the serving utility, like Edison, would charge a resident, including passingon any low-income rebates or discounts, such as “CARE,” enforcement is somewhat lacking. Residents can call County Weights and Measures (W&M) to have them check the accuracy of their meters and assure they have been sealed. Some W&M offices are willing to look into billing complaints, such as failure to provide proper billings or post rates, but most only check the accuracy of the meters. SB 1163 (Dunn, 2004) will required the CPUC to take informal complaints from master-meter customers (park residents) and that the names and phone numbers of private billing agents be disclosed by the management in the master-meter billings to individual residents. The CPUC often refers these complaints to the serving utility to work out with the park management. The process can often be lengthy with mixed results. Lastly, if a resident can document errors in his/her billings, or refusal of the park to apply the proper gas or electric rate, or CARE or other discount, the resident can seek damages in Small Claims Court.
- Separating Charges
- On last month’s billing, the park suddenly started charging us for sewer, water and garbage previously included in the rent. Can the park impose these extra charges on top of the rent?
- It depends on your rental agreement. If your rental agreement provides that sewer, water and garbage were included in the rent, the park management can then itemize or charge you separately for these utilities only if they follow the requirements of MRL Section 798.41. Otherwise they may be in breach of the rental agreement. This section requires that they simultaneously deduct the average monthly amount of these utility charges from the rent when they itemize and charge you separately for them. If the management refuses to deduct the charges from the rent, you should then pay the amount under protest and seek redress in the courts. This is the type of issue where it is advantageous to have a homeowners’ association help in seeking legal action on behalf of a group of homeowners all facing the same problem. If your rental agreement does not indicate that these charges are included in the rent, then the park owner could charge you for them but only after complying with the 60-day written notice requirement of Section 798.32.
- Park Violations of the MRL
- When park management violates the Mobilehome Residency Law (MRL), the landlord-tenant law for mobilehome parks, there is no government enforcement but residents have to go to court to protect themselves. What good is the MRL if there is no government enforcement?
- The MRL is part of the Civil Code. Like conventional landlord-tenant law and other civil provisions, the enforcement mechanism is through the civil courts, not law enforcement or another government agency. Except with regard to public nuisance and health and safety issues in parks, legislative attempts to have district attorneys or city attorneys enforce all or part of the MRL have failed in the past. There is no mobilehome “police.” Courts are a governmental agency, one of the three branches of government saddled with, among other things, resolving or deciding civil disputes. When faced with a problem, residents need to network through mobilehome advocacy organizations or by forming homeowners associations to protect themselves as a group. Few attorneys are familiar with mobilehome law or are interested in practicing it, but as the number of lawsuits against park owners/managers grows, more attorneys are starting to deal with those issues. Some mobilehome organizations or the County Bar Association can provide references or lists of attorneys who take mobilehome cases. Ask neighbors and friends for such references. In some cases, simply hiring an attorney to write a letter on his/her firm’s letterhead to the management will do the trick. In other cases, Small Claims Court may have jurisdiction over cases involving damages of less than $7,500, and, with preparation and advice from mobilehome advocates or attorneys, one can appear in court on one’s own behalf. All park violations should be documented for evidence in court. MRL provisions allow a successful plaintiff to ask the court for attorney’s fees if he/she prevails and obtain up to a $2,000 penalty against the park, at the discretion of the judge, for each willful management violation of the MRL that is proved.
- Failure to Maintain the Park
- The park never fixes anything. Rents go up annually but potholes in the streets get larger, sewers often back-up, water pressure is almost non-existent, electric circuit breakers blow and take days to fix before power is restored, and the bathroom plumbing in the clubhouse has been broken for six months. How do we get the park owner to fix things for which we are paying rent?
- File a complaint with the Department of Housing and Community Development (HCD) or local government, whichever has jurisdiction to inspect mobilehome parks in your community. You may have to fill out an HCD Ombudsman Complaint Form detailing your problems. If you don’t get a response from HCD within a reasonable time, call your legislator and have him or her make contact with HCD on your behalf. HCD inspectors are spread thin, so you will have to keep in contact with the inspector to make sure they are going to follow through, once they cite the violations, to be sure the park actually makes the necessary corrections. In more serious and continuing cases, residents may have to consider contacting an attorney who specializes in failure-to-maintain lawsuits against mobilehome parks (check with your MH advocacy groups for referrals) on a contingency fee basis.
- Senior Park Changed to All-Age by Park Management
- We retired and bought a home in the park five years ago, when it was advertised as a senior community. The rental agreement and park rules provide that we had to be 55 or older to move in to the park. Now the management has arbitrarily changed the senior rule to allow anyone of any age to move in, has torn out the shuffle board court and closed down part of the clubhouse that used to be used for weekly bingo games. However, there are no play areas for children in the park, and teenagers kick their soccer balls or footballs into our yards and run through our carports, and some have even damaged our property. Shouldn’t residents have a say in the elimination of the retirement lifestyle we were promised when we moved in, and shouldn’t the park have facilities for kids if they convert to an all-age park?
- The federal Fair Housing Amendments Act of 1988 prohibits discrimination against families with children in multiple residential housing but permits such housing, including mobilehome parks, to limit residency to seniors in one of two categories: 1) 55 and older; or 2) 62 and older, if the park meets certain minimum conditions. The major condition is that a minimum of 80% of the units are required to have at least one resident 55 and older. The federal law does not specifically address procedures for changing from a “senior” category to an all-age category, which in rental mobilehome parks under state law or by practice is often the sole decision of park management with a minimum notice. But parks can lose their “senior” status if, upon a complaint, they fail to meet the statutory conditions, such as the 80% requirement. The law does not require parks or other multiple-residential housing complexes that convert to all-age to install playground or other facilities for children. Advocates of family housing have argued that such a requirement would drive up the cost of housing and discourage landlords from opening up restricted housing to families. Some local governments have imposed conditions on mobilehome park zoning or use permits requiring parks that were developed as “senior parks” to be maintained as “senior” unless otherwise approved by the city or county. It is not clear to what extent these local zoning or use permit requirements may conflict with the federal Fair Housing Amendments Act.
Senior residents who have leases that provide that the park is a retirement or Senior Park, and providing for specific facilities such as a shuffle board court, may, however, have a civil case against the park for breach of contract or diminution of services contracted for in the lease or rental agreement.
- Occupancy Standards
- There are six people living next door to me in a single wide mobilehome with one bedroom, but the park management won’t do anything to prohibit the overcrowding. This is an older park with narrow streets and limited facilities. If there was a fire, all of them would have trouble getting out. They have 4 cars and park them in front of my home and across the street, making it very hard for me to get out of my driveway into the narrow street. Can’t the state or local government force park management to limit occupancy of mobilehomes based on square footage or fire safety standards?
- The occupancy standard issue is difficult to solve. The issue has arisen at both the federal and state levels. Legislation has been considered but not enacted to create a “2 persons per bedroom plus 1” standard that is presently only a HUD guideline (e.g. – if the home had 1 bedroom, the occupancy standard would be 3; if the home had 2 bedrooms, the standard would be 5, etc.). Proponents argue that occupancy standards are necessary to avoid overcrowding and unhealthy living conditions. Opponents contend that, especially in areas where the cost of housing is high, an occupancy standard is nothing but a form of discrimination against persons who can’t afford larger homes. Some cities have attempted to legislate occupancy standards, only to have their ordinances challenged in court. Mobilehomes usually have a design standard established by the manufacturer as the recommended occupancy for the size of the home. The manager could try to establish an occupancy standard in the park rules based upon something reasonable, such as the design standard of each home or the HUD guideline, and some do, but the management would probably be subject to legal challenge, and for that reason most parks don’t even try.
- Clubhouse Never Open
- Our park has a clubhouse but it was closed last year, and our requests to hold mobilehome owner meetings in the clubhouse have been denied. Doesn’t state law require the clubhouse to be open and available at reasonable hours?
- Yes. Although the law does not require parks to have club houses or meeting halls, if they do, MRL Section 798.24 requires the common facilities to be open and available at reasonable hours, which are to be posted. Section 798.51 gives homeowners the right to hold meetings at reasonable hours and in a reasonable manner in the clubhouse when it is not otherwise in use for any lawful purpose, including homeowner association meetings and meetings with public officials or candidates for public office. If you bring these provisions to the attention of management in writing, including a request for a meeting with the management on the issue in accordance with Sec. 798.53, and the management still refuses to do anything about it, you may have to obtain the services of an attorney to write the management a letter or even go to court to enforce your rights under these provisions or as a breach of contract or diminution of services under your lease or rental agreement.
- Eviction for Rule Violations
- Last month my neighbor received an eviction notice which indicated that she was in violation of park rules, without any other explanation, and that she has 60 days to move herself and her home out of the park. The management refuses to discuss the eviction with her and returned her rent check for this month. What does she do?
- The first step is to seek advice from an attorney, or a mobilehome advocacy group that can refer her to counsel familiar with these kinds of cases. MRL Sections 798.55 and 798.56 govern termination of tenancy in a mobilehome park. In a mobilehome park, your tenancy can only be terminated for just cause, meaning they can only terminate you for seven specified reasons in the code, including violation of a park rule or regulation. The management must also give you a 60-day notice, but if you refuse to move after the 60-day period, the park management has to take you to court in what’s known as an unlawful detainer action, similar to other residential tenancies. There you have the opportunity to tell the judge your side of the story. If you are evicted, depending upon the court, you may be required to pay the management’s attorney fees, in addition to having to leave the park. In this case of termination for a rule violation, the homeowner may have a good defense because the code requires management to specify the rule broken and particular circumstances of where and when, and they first have to give you seven days to correct the rule violation. If you can show the court they didn’t follow these requirements or give you that opportunity to conform within seven days, the park cannot proceed with termination. However, if you violate the rule more than twice in a 12-month period, on the third violation, the management may proceed with termination despite the fact you have cured the violation (Sec. 798.56d), a sort of “3 strikes and you’re out” provision. If the management refuses to accept the resident’s check for rent, the resident should put the rent money in a trust or escrow account at a bank so the resident can later show good faith to the court in trying to pay the rent. Termination of tenancy (eviction) in a mobilehome park is a vitally important matter because a resident can lose their home, so they should not waste time seeking legal help.
- I have to move to Portland, Oregon next month because of a job change but have not been able to sell my mobilehome in San Jose, which has already been on the market 90 days. The park owner keeps rejecting my buyers for various reasons and says the park rules will not permit me to sublet the home to someone else. This means I will have to incur the hardship of continuing to pay rent on an empty home in order to resell it in place, in addition to paying rent for my new place in Portland. Can the park prevent me from subleasing my mobilehome?
- Yes. Most mobilehome parks have rules that prohibit homeowners from subleasing their mobilehomes, even in hardship cases. This issue has arisen in the State Legislature a number of times, but numerous bills over the past 10 years to require park owners to let homeowners sublet have not been successful, except in cases of seniors with health problems who require convalescence and have to leave their home for not more than a year.
- Selective Park Rules
- In my park there are many rules and regulations, but they don’t apply to everyone. For example, the rules say no one is allowed to have a clothesline, outside patio furniture, or pick-up trucks in the park, but the manager and several of the manager’s resident friends have their pick-up trucks parked at their spaces, and several other residents have patio furniture sitting on their decks or in their empty carports. How can park rules apply to some residents but not others?
- They can’t. MRL Sec. 798.56(d) provides that the park rules and regulations have to be “reasonable.” “Reasonable” often MAY/JUNE be subject to court interpretation, but normally rules have to have some rational basis in fact under the circumstances, as well as apply evenly to everyone residing in the park. A rule, which applies to some but not all residents, is discriminatory and would not stand up in court. Sec. 798.23 also requires park owners and their employees to abide by park rules to the same extent as residents, except rules regarding age limits or acts of the park owner or park employee undertaken to fulfill park maintenance, management or operational responsibilities (making noise pounding nails, use of trucks for maintenance purposes, etc.). The manager MAY/JUNE argue that it is necessary for him to have a pick-up in order to fulfill his park responsibilities as manager. Considering the fact that many people today commonly use pick-ups like cars, the rule MAY/JUNE have no reasonable basis in the first place for prohibiting other residents from parking a pick-up truck in the park. But civil action MAY/JUNE be necessary. Homeowners, through their homeowners association or advocacy group, should seek a meeting with management under Section 798.53 or seek legal redress, such as an injunction or possible declaratory relief.
- When I moved into the park in 1999 I was told the park prohibited pets, so I had to give mine up. But other park residents now have pets. I miss having a pet. Is this legal?
- Probably. AB 860 (Thomson, 2000) became effective on January 1, 2001, which permits pets in parks with certain limitations. The bill allows a mobilehome owner to have one domesticated dog, cat, bird or aquatic animal kept within an aquarium, subject to “reasonable” parks rules. However, persons who signed a rental agreement prior to January 1, 2001 with a provision prohibiting pets are bound to that provision until the rental agreement expires or is renewed. If the resident moved into the park in 1999 and signed a 10-year lease with a ‘no pets’ provision, he or she is bound to it until the lease expires. Persons moving into a park since January 1, 2000
Mobilehome Q & A, Page 9
would be allowed to have pets that conform to the park’s rules as to size, height, or weight of the pet, and in some instances breed (e.g. some parks prohibit big dogs, pit bulls and certain breeds with so-called aggressive tendencies).
- Parking Problems
- When it was a senior mobilehome park, we never had any problems, but today every family has about three cars and management has not made provisions for additional parking. Management also has an aggressive towing policy and has even towed residents’ cars out of their own driveways and carports.
- Residents or guests who park in fire lanes along the park’s streets, or in front of park entrances or fire plugs can be towed without notice. Park management cannot have residents’ cars towed from their own parking space or driveway unless the vehicle does not conform to the park rules, in which case a 7-day notice is required pursuant to MRL Section 798.28.5. But if the vehicle presents a significant danger to the health and safety of residents, or is parked in another resident’s space and requested to be removed by that resident, the vehicle could be towed without the 7-day notice, in which case the extensive provisions of Vehicle Code Section 22658 would apply to both the management’s and tow company’s procedures in removal of the vehicle.
- Management not Available in Emergencies
- Recently a water pipe broke in our park, but there was nobody there who knew how to turn the water off, and extensive flooding occurred. We called the park manager’s number, but received only an answering machine message. This is not the first time we have had a sewer or water pipe break or other emergency and the manager wasn’t available to respond. Doesn’t the law require a manager to be on the premises at all times to handle such emergencies?
- Not exactly. Health and Safety Code Section 18603 requires a manager or his/her designee to reside in parks with 50 or more spaces, but does not require them to be on the premises 24 hours a day. The code does require a person to be available by telephonic means, including telephone, cellular phone, pager, answering machine or answering service, to reasonably respond in a timely manner to emergencies concerning the operation and maintenance of the park. The agency responsible for enforcement of park health and safety requirements (either local government or HCD) should be contacted about citing the park for this possible violation, although some enforcement agencies are reluctant to cite for this violation because it is difficult to prove. Additionally, residents MAY/JUNE have a legal cause of action against the park for damage from flooding due to the park’s negligence in not being available to shut off the water in a timely manner.
# # #
* Information compiled by the Senate Select Committee on Mobile and Manufactured Homes based on actual inquiries and questions by mobilehome owners in the last five years.
CARE: California Alternate Rates for Energy Program
CPUC: California Public Utilities Commission
DFEH: California Department of Fair Employment and Housing
HCD: California Department of Housing & Community Development
MRL: California Mobilehome Residency Law
W&M: Weights & Measures (County Sealer’s Office)