All views expressed are mine alone and do not necessarily represent those of any client or other organization. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
Copyright (c) 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016 and 2017 by Michael A. Parham. All rights reserved.
January 1, 2017
On May 12, 2016, the Governor signed into law HB 2259, creating new restrictions on poachers and giving parks valuable tools with which to deal with them. The effective date of this law will be August 6, 2016.
HB 2259 has two key provisions. To begin with it amends ARS §33-1451 to add a new section C reading as follows:
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.
So if a poacher or moving contractor shows up and begins tearing down the home without a clearance for removal first being obtained, this statute applies. A park facing this should prepare and give a “TRESPASS NOTICE TO POACHER OR POACHER’S AGENTS.” A copy appears below. Give one to every single person on-site involved in the activity. Tell them to leave immediately or you will call the police and have them removed and arrested.
If the police are called and refuse to remove the people or say it is a “civil matter”, show them that notice and point out the statute quoted in it. If they still fail to act, insist they call a supervisor. If nothing comes of it, get names and badge numbers and refer it to your lawyer.
Note: If you have wrongfully refused to issue a clearance for removal even though a responsible party was identified and rent through the removal date was paid, this statute does not apply. Be sure you are in the right.
When delivering these notices, take pictures of the vehicles, equipment and members of the removal crew for use in later prosecution if that becomes necessary.
The second part of this law amends ARS §41-2186, the dealer and licensee disciplinary action statute by adding a new basis for the Office of manufactured Housing to take disciplinary action against a dealer, salesperson, installation contractor and other licensee, reading as follows:
The doing of any other wrongful or fraudulent act in conjunction with the sale, transfer or relocation of a mobile home in this state.
If you can prove a dealer or one of his salespersons lied to a tenant about being able to sell his home and the right of first refusal; that the licensee fraudulently marked up the price when offering to sell the home to the park; or that the licensee ignored the clearance for removal requirements of the law in removing the home, you can and should file a complaint with the OMH. Be sure it is a strong, well documented complaint because we believe the OMH will be hesitant to act on any but the most serious, provable violations.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
TRESPASS NOTICE TO POACHER OR POACHER’S AGENTS
If a buyer of a home or contractor shows up to begin preparing a home for removal, but a Clearance for Removal has not been issued, and if they will not leave the Park, prepare this notice and hand deliver it to each individual on the Premises involved in the moving preparation. Try to get names for the blank spaces and include the name of the contractor whose equipment is on the site. If you can’t get names and they refuse to leave you may call the police and tell them those people are trespassing and you want to serve the notice and have them leave. The statute making this a criminal trespass is quoted in the notice. Note: You cannot enforce a trespass if the requirements for a Clearance for Removal have been met but you refuse to issue it.
(Name of Community)
NO TRESPASSING NOTICE
RE: Removal of Mobile Home Located on Space _______ of this Community
YOU ARE HEREBY NOTIFIED, pursuant to A.R.S. §§ 33-1451 (C), 13-1502, and common law that you are not permitted to be on the property of:
Name of Community: _____________________________________________________
Located at: ______________________________________________________________. This community is private property. The representative signing this No Trespassing Notice has lawful control over the community. You are not allowed in the community until you have obtained a Clearance for Removal of the mobile home located on the above referenced rental space. Should you return to or be found in the community at any time from this date forward, you will be removed as authorized by law and you will be prosecuted in accordance with the foregoing unless you have a Clearance for Removal. A.R.S. § 33-1451 (C) provides as follows:
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.
A.R.S. § 41-2186 (6) makes the following a disciplinary offense for an Office of Manufactured Housing Licensee: “The doing of any other wrongful or fraudulent act in conjunction with the sale, transfer or relocation of a mobile home in this state”.
DATE:_______________________, 20____ ______________________________Manager
How Served: Personal Delivery _____ Certified Mail _____
April 13, 2011
Williams, Zinman & Parham, P.C.has been handling a vast number of abandonment cases all over the State this past year. Since associating with this firm I have acquired the services of Chris Francis who has decades of experience with mobile homes as a D-8 licensee operating his own mobile home dealership, as a full time Legal Assistant.
In addition we have been able to automate much of the routine paperwork and scheduling of necessary events. This has enabled us to get these done at what we think is a reasonable price. Typically the total price runs about $500 including costs for us to complete a routine landlord lien sale in Maricopa County and up to $600 in other counties. The price difference is the much higher cost of publication in the other 15 counties.
Complicated cases will cost more. Extra services which include us actually walking the paperwork through the MVD and obtaining the actual certificate of title also cost extra.
We also provide these services at the same rates to clients of other attorneys who need to dispose of abandoned homes.
Introduction. This page will provide information for MHC landlords and mobile home purchasers and lienholders concerning their rights and obligations when a home is abandoned by the tenant in a mobile home park or MHC.
This page is limited to Arizona law. Other states have different procedures for dealing with these problems. Some are similar to Arizona, others are not. None are identical to Arizona.
Dealing with abandoned homes is extremely complicated since most relevant MVD requirements appear in unpublished “Policies” and since the MVD is in the process of outsourcing to private contractors a number of the functions it previously did with MVD personnel.
Basic Law. The Arizona mobile home parks landlord tenant act addresses this situation in several provisions.
ARS 33-1478 (A) says that when a home is abandoned the landlord, within ten days of discovering this, must give the lienholder a notice of abandonment advising that it is liable for up to 60 days rent then due plus future accruing rent. An Arizona Court of Appeals decision held that when a landlord fails to comply it loses its rights under the statute. Presumably the Court meant the right to past due rent since a wealth of other law holds it is entitled to the rental value of the premises after repossession. NOTE that it is not necessary for the lienholder to repossess to trigger its liability under the statute; only that it be a lienholder and that it be timely notified.
ARS 33-1485.01 says that no one--a tenant, buyer, lienholder in possession, dealer, or anyone else--can remove a mobile home from a park without a signed clearance for removal from the landlord. The statute provides that the landlord does not need to give the clearance until everything owed the landlord at the time of removal is paid. Elsewhere in the Act it is stated that only rent through the removal date is due. If an unexpired long term lease is involved, the rent coming due after removal cannot be demanded.
Lienholders. A lienholder is responsible for 60 days past due rent when a timely notice of abandonment is received. Note that the law deems it received five days after mailing by certified mail to a proper address if actual knowledge is not obtained earlier.
A lienholder is NOT liable for late charges. These charges can only be collected from a party agreeing to pay them by signing a rental agreement containing a late charge provision.
A lienholder is NOT liable for legal fees and court costs incurred evicting a tenant. These obligations also arise out of a contract with the tenant (the rental agreement) that the lienholder was not a party to.
A lienholder IS liable in my view for accrued utility charges since this is part of the rent as the term is defined in ARS 33-1409.
Remember, the lienholder's liability in these situations does not arise out of a contract since there is no contract with the lienholder. It arises under a statute and the statute says it is liable only for rent. The statute does say, with respect to future rent, that it must pay rent "and other charges" but in context it appears to be referring to utility charges.
Since the lienholder's liability does not arise under the tenant's rental agreement but under a statute, it is not derived from the tenant's liability. It is independent. This means that if a tenant goes bankrupt and the tenant's liability is discharged, this has no effect on the lienholder's liability. That liability is separate because it arises under a statute.
If the lien is released and the lienholder ceases being a lienholder, its liability ends. But if the lien is paid and the lien release is provided to the homeowner but never filed with the MVD, the lienholder continues to be a lienholder as far as the public record is involved.
If a lienholder who has been paid gets a notice of abandonment, it should check with the MVD and see if it is still being shown as the lienholder of record. If so it should either offer a duplicate lien release to the landlord or file the lien release directly with the MVD.
Lienholders should not assert a tenant's bankruptcy as a defense to paying rent since that bankruptcy has no effect on the lienholder's liability under the statute. Landlords will interpret this as a sign of bad faith.
Most landlords will permit rent to accrue for awhile to enable a lienholder to re-sell the unit on site. The normal deal is that the buyer will pay the lienholder's debt to the park when the sale closes. BE AWARE, however, that such buyers often try to avoid paying the park the lienholder's debt and some have been known to try to move the home without paying. ARS 33-1485.01 imposes double liability on all parties if that happens. And the lienholder remains liable under ARS 33-1478 (A) if the buyer refuses to pay the lienholder's obligation. Lienholders should ensure their debt is actually paid when selling a home under these circumstances.
A lienholder refusing to pay or release its lien can be sued for rent due under ARS 33-1478 (A). This is a last resort for a landlord but does occasionally happen.
Lienholders should maintain close working relationships with park managers.
Purchasers of Abandoned Homes. A buyer of an abandoned home from a tenant steps into the shoes of the tenant. In order to be approved for tenancy he can be required to pay all charges then due under the tenant's rental agreement. Note that the rental agreement continues in force after the abandonment since possession of the premises was never surrendered by removal of the home.
A buyer of an abandoned home from a lienholder steps into the shoes of the lienholder. The repossession of the home cuts off the old rental agreement. A buyer of the home can only be required, in my view, to pay what the lienholder owes at the time the buyer is approved for tenancy.
NOTE that under ARS 33-1485.01 the home cannot be removed from the park until a clearance for removal is received, which will not happen until all financial obligations towards the park are satisfied.
SEE BELOW for more information on buying homes from lienholders.
Landlords--Homes subject to Liens. The landlord can only collect what is actually owed by the lienholder following the rules above. By trying to get more than is owed, a park may become liable for conversion by controlling the home while insisting on payment of sums not owed. NOTE that if you failed to give a timely abandonment notice, you may have forfeited the right to any rent owed until the lienholder actually learned of the abandonment.
If a home is to be sold on site, once all sums due have been paid the landlord should take an application and process it by applying the same criteria as for any other prospective tenant/applicant.
Landlords--Free and Clear Homes. A series of statutes plus an interpretation of ARS 33-1478 (A) by the Arizona Court of Appeals has the effect of recognizing a landlord lien in favor of the park against the mobile home. This is called a “possessory lien”. It means that although no lien appears on the Certificate of Title, as long as the landlord has possession of the home, it can keep it until it is paid what it is lawfully owed.
This gives the park the right to insist on being paid what it is lawfully owed before the home can be removed or re-occupied. A park finding it has an abandoned free and clear home has two options for dealing with it.
1. Landlord Lien Sale. This is a procedure whereby the home is seized, held for at least 60 days, and then following statutory procedures is sold at public sale with the proceeds used to satisfy the debt owed the landlord. Many technical requirements must be satisfied and it is not always possible to do so. If they cannot all be met the MVD will not recognize the sale. If they are, it will issue a free and clear title to the purchaser of the home at the auction.
The Arizona MVD now permits landlord lien sales even when there is a lien on the title to the mobile home. At least ten days before the sale the landlord must give the lienholder notice of the sale and when and where it will be held. The lienholder must be told that the sale will proceed unless the lienholder pays the rent that is due from it prior to that time. This means that lawsuits are usually not necessary in cases where a lienholder has been found but refuses to either pay rent or release the lien.
In the usual case the home has no significant market value. The result is that despite the sale being publicized, no bidders show up. The landlord then normally "bids in" the accrued rent that is owed and as the high bidder winds up buying the home for the rent that is due.
2. Bonded Title. This is the procedure by which the park can get title to such a home when the landlord lien sale remedy is unavailable. Usually that happens when the VIN number has disappeared from the home or there is no record of the mobile home in the Arizona MVD data base.
The park files an affidavit for bonded title with the MVD explaining why it is entitled to have title transferred to it and posts a bond to indemnify the true owner if he later appears and presents a claim.
Both procedures are complex. They are described in the MHCA Purple Book.
CAUTION: A number of attorneys are seeking eviction business from parks but do not have the requisite knowledge concerning abandonments which often happen after eviction. Some of them will have the Constable seize and sell the tenant home at an execution sale to satisfy an eviction judgment.
I do not believe this is proper since the tenant's interest in the home is exempted from execution sales by Arizona Homestead statutes. I do not believe, however, that the Homestead statutes bar a landlord lien sale. If a home title is obtained following a Constable’s sale to enforce the eviction judgment, the park could be liable to the former owner for conversion and could have some liability to the person it re-sells the home to.
Buying Homes From Lienholders. It is common for people to buy homes from lienholders with part of the price being the buyer's agreement to pay rent owed the park in which the home is located. Unfortunately all too often there is confusion, even disagreement over how much the park is owed. Sometimes the buyer does not even inquire. This can create huge problems if the park blocks the purchaser from removing the home. If they can't get the amount due worked out, litigation will almost surely follow. Here are some suggestions.
1. The buyer should confirm the amount claimed from the park where the home is located if possible. Often this is not possible but if the buyer knows the operator of the park it is in, that inquiry may save a lot of grief later.
2. The buyer should ask the lienholder how much is owed and get the figure in writing. He should also ask if the park it is located in agrees. If not, find out what the park iscurrently claiming. Also find out when the lienholder first learned about the abandonment. Not necessarily when it received a formal abandonment notice but when it first learned of the abandonment by any means. The law says the lienholder is liable for 60 days rent preceding the date the lienholder first gained actual knowledge of the abandonment and that may be much earlier that the date the abandonment notice was received.
3. Knowing this, the buyer should be able to calculate the rent due (i.e., rent and utilities from 60 days before the lienholder learned of the abandonment through the month the home will be removed from its present location).
4. If the buyer needs to wait till after purchasing to speak with the present landlord, as soon as he has gotten the title he should visit with that landlord. Be prepared for an angry reaction since parks hate to lose homes and since that landlord may have been trying to buy the home also.
5. The park may try to charge such things as late fees, eviction expenses, legal fees and other things that the tenant who abandoned the home owed under his rental agreement. All parties need to understand that the lienholder was not a party to the rental agreement. The lienholder owes only the amounts the law imposes on him. That is, in my view, rent and utilities. Parks should not try to charge these other fees and lienholders and buyers from lienholders should not be responsible for paying them.
6. The buyer is in a dilemma if the park insists on being paid more than it is owed and blocks the home from leaving unless it is paid. The buyer can do one of two things. First he can leave the home there and sue the park for the value of it plus any incidental damages he suffers along with punitive damages for conversion (theft) of the mobile home. Or second, he can pay what the park wants, get the home out, and then sue for what he was forced to pay in excess of the proper charges plus incidental and punitive damages for extortion. The second course would normally be the preferable one.
7. A park blocking a home from leaving and insisting it be paid more than it is entitled to has major exposure under the law for damages for doing so. Parks in this situation need to be certain of what charges they are entitled to.
The information contained on this site is not legal advice and does not create an attorney-client relationship with the user. Landlord-tenant and fair housing laws are always changing and are subject to interpretation. You should always consult an attorney before taking any action.
This is an attempt to collect a debt. Any information obtained will be used for that purpose.