WZP Legal Update--MHC and RV Park Edition                          Issue 2                        April 18, 2016
   Legal Issues for Community Managers   
  Manufactured Housing Communities and RV Parks
 Special 2016 Legislative Edition--New Laws for 2016
Special Criminal Background Rental Criteria Edition
The 2016 Arizona Legislative session has been very active as far as manufactured housing communities and RV parks are concerned.

MHCA's most important effort was a bill to rein in the unscrupulous practices of mobile home poachers. 

AAMHO backed a bill shifting all tree maintenance obligations on landlords, reversing the effect of current law as interpreted by an ALJ decision. A tree bill did get through but it still allows landlords to place tree maintenance responsibilities on tenants for trees growing on rental spaces if they provide for it in rental agreements. 

A description of bills that WE THINK will be enacted and become effective around July 22, 2016 follows .  A link to the Bill is included in each title.

NOTE:  As of this writing, the Tree Bill and the Poacher Bill had passed both the House and the Senate.  But the Senate made technical changes to both requiring a return to the House for concurrence in the changes.  The Title Bill is simply awaiting final concurrence in the House. Normally that is a routine matter but the budget is now being considered and the Governor has indicated he does not want any more bills sent to him until the budget is completed.

So while we think all three bills will eventually be approved by the House and signed by the Governor, it is possible they will get caught in a session-end rush and not get through. This has happened in the past. 

As Yogi Berra said, "It ain't over 'till its over."

Still, because some advance planning is necessary if they do get through, and because other things are happening, we are going ahead and release this Newsletter.

Check the Blog on Mike's website periodically for information on where these bills stand.
Mobile Home Poacher Bill
Poaching is the practice of trespassing on the landlord's property to induce residents to violate leases by breaching rights of first refusal, or removing homes without obtaining clearances for removal.

This Bill amends ARS 33-1451 adding new section C making it a crime (trespass in the third degree) for someone to refuse to leave a park if he is trying to remove a home without a clearance for removal. Here is what it says:

C.  A PERSON SHALL NOT ENTER A MOBILE HOME PARK AND BEGIN WORK ON THE REMOVAL OF A MOBILE HOME FROM A MOBILE HOME PARK WITHOUT FIRST SATISFYING THE REQUIREMENTS FOR A CLEARANCE FOR REMOVAL AS PRESCRIBED IN SECTION 33-1485.01. A PERSON WHO HAS NOT SATISFIED THE REQUIREMENTS FOR A CLEARANCE FOR REMOVAL AS PRESCRIBED IN SECTION 33‑1485.01 AND WHO REFUSES TO LEAVE AND REMOVE THEIR REMOVAL EQUIPMENT FROM THE MOBILE HOME PARK ON REQUEST FROM THE LANDLORD COMMITS CRIMINAL TRESPASS IN THE THIRD DEGREE PURSUANT TO SECTION 13‑1502. THIS SUBSECTION DOES NOT APPLY IF THE LANDLORD REFUSES TO PROVIDE THE CLEARANCE FOR REMOVAL IF THE REQUIREMENTS IN SECTION 33‑1485.01 ARE SATISFIED.

In addition, ARS 41-2186 was amended to make the following cause for license discipline:  "the doing of any other wrongful or fraudulent act in conjunction with the sale, transfer or relocation of a mobile home in this state" .  

The new 2016 MHCA Blue Book will have a special Trespass Notice form to use for poachers attempting to remove homes without a clearance for removal. It also already has clearance for removal forms and sample rental agreements with right of first refusal language.


What You Should Do
 
1.  Be sure your rental agreement addresses removal of homes.

2.  Be sure your park rules have clear requirements for the space when a home is removed.

3.  Be familiar with the clearance for removal process. Have Request for Clearance for Removal and Clearance for Removal forms on hand.

4.  Include extracts from park rules detailing the condition the space must be left in with the clearance for removal forms given to people requesting them.

5.  Act promptly on clearance for removal requests.

6.  Assuming this bill gets enacted, have a poacher trespass notice on hand.

7.  Have a right of first refusal in your rental agreements.

Contact Melissa Parham at our office for a document review.
 Tree Maintenance Bill  HB 2304


HB2304 adds two new sections to ARS 33-1434:

D.  For new tenants who are moving into a mobile home park, any rental agreements that are executed or adopted after December 31, 2016 shall specifically disclose in writing any requirement that the tenant maintain one or more existing trees located on the mobile home space.

E.  Any change regarding the tenant's obligation to maintain any one or more trees located on the mobile home space constitutes a substantial modification of the rental agreement pursuant to section 33-1452.

It also amends ARS 33-1452 to add a new section B reading:

B.  Beginning May 31, 2016, a new rule adopted after the execution of the tenant's initial rental agreement that imposes a reoccurring financial obligation on a tenant is not enforceable against the tenant.
What You Should Do
1.  If you maintain all trees in the park including on tenant spaces and intend to continue doing so, no action is required.

2.  If you haven't made a decision on this yet, you should do so by April 25, 2016. That is because you should try and have a rule imposing tree maintenance responsibility for trees on tenant spaces on tenants in effect prior to May 31. Since a rule change takes a 30-day notice, and since an extra 5 days is added when notices are mailed, a rule change notice doing this should go out in the mail by April 25.

3.  New ARS 33-1451 (B) is pretty vague whether it concerns a rule like tree maintenance but meeting its deadlines avoids a dispute whether the rule imposes a "reoccurring financial obligation" on tenants.

4.  A new rule to this effect should not be considered a "substantial modification" to a rental agreement since according to the latest ALJ decision on the subject, it is already the obligation of tenants to maintain trees under the law (ARS 33-1451 (A)).

5.  All parks imposing tree maintenance responsibility on tenants should immediately begin using rental agreement forms with such a provision in them. All new tenants in these parks should have rental agreements with this provision. All renewal rental agreements with current tenants should also be on this form.

Contact  Melissa Parham  at our office for a document review.
Potlucks HB 2341


Potlucks  in workplaces have been exempt from food handler licensing requirements for years. but other potlucks without the exemption have technically been required to comply with those health code requirements.

In recent years some counties have been shutting down mobile home and RV park potlucks and threatening citations if the sponsors did not comply with food handler laws.

This bill amends ARS 36-136 to expand the exemption to include non-workplace potlucks. So potlucks in mobile home and RV parks should be able to resume without government interference.

Note that other requirements of food code provisions in county health codes continue to apply to mobile home and RV park kitchens and functions other than potlucks.

This bill was signed by the Governor and will become law around July 22.
MHP & RV Park Title Limits SB 1362
This bill adds a new "prohibited provision" to those listed in ARS 33-1414 (A) reading:

Place any additional person's name on the title to the mobile home as a condition of tenancy or residency for that additional person or pay a fee or other form of penalty for failing to place an additional person's name on the title to the mobile home.

A similar change is made in ARS 33-1452, listing prohibited provisions in rules and regulations.

The same changes were made in the Long Term RV Rental Space Act at ARS sections 33-2106 and 2132.

This means that if you have a tenant who wants to bring in a new co-resident like an in-law or a girlfriend and that person is otherwise qualified, you cannot require that he or she be added as a co-owner on the title to the home as a condition of approval as a co-resident or charge a special fee if the tenant refuses to do so.


  Criminal Background Criteria
The Ban the Box movement has been around a few years now. The "Box" is the question on an employment or housing application asking the applicant to check a box yes or no whether he has ever been convicted of a felony.

This movement is spearheaded by advocates for criminal rights. They believe a person's past criminal record should not disqualify him from future housing or employment opportunities.

They assert that fair housing laws should prohibit use of criminal backgrounds to deny applications. The argument is that a disproportionate percentage of persons convicted of crimes are minorities and thus use of criminal criteria has a "disparate impact" on protected minorities and is discriminatory.

HUD enforces fair housing laws. On April 4, 2016 it released a policy statement in effect adopting this argument. To pass muster under this policy, a criminal background criteria needs to consider only convictions, not mere arrests; needs to consider the severity of the crime and the time since the conviction took place; and rejects out of hand "zero tolerance" policies.

It is unclear how this policy will work. We are not sure if only racial and ethnic minorities can claim discrimination as a result of being denied tenancy due to criminal conviction, or whether anyone can. The best approach would seem to be to come up with revised criminal background criteria that take into account the time since the conviction(s) and the seriousness of the offenses. The idea is to balance public safety and property protection with the rehabilitation of the offender since conviction.

But it is clear that a requirement that an applicant has NEVER been convicted of a crime or of a felony is not going to stand up in a fair housing investigation.  And arrests alone must never be considered.

You can read the HUD policy statement here. 
  What You Should Do
1.  Ensure you have written criminal background criteria for rental, that you apply it evenly against all applicants, and that it is made available at the time of application.

2.  Eliminate arrests without convictions from consideration under your criteria.

3.  Abandon zero tolerance policies, such as no felony convictions, ever.

4.  Identify a hierarchy of kinds of criminal convictions that may be disqualifying with a cutoff period.  For example, no homicide convictions within six years after completion of incarceration; no non-aggravated property convictions within the four years after completion of incarceration, etc.

5.  Have your new criminal background criteria reviewed by your attorney before finalizing it.
Social Media, Websites and Contact Information
We use social media and the internet to keep in touch with our clients and friends.

Our Facebook page is updated several times a week to report what we are doing as well as legal developments in the residential rental housing business. You should "Like" us on Facebook to get our updates in your home fee

Mike's website has years' worth of articles on MHC and RV Park law that cover almost anything a manager may need to know. His current year blog keeps parks up to date on latest developments in the industry in Arizona.

The WZP firm website gives a comprehensive overview on what areas we practice in. It also links to our evictions site where clients can electronically submit eviction cases and access case information 24/7.     

Contact Information:  

Phone: (480) 994-4732  
Facsimile: (480) 946-1211

E-mail:   

Mike Parham:
      
Melissa Parham:
           
Vanessa Johnson: