Termination Of The Mobilehome Park Tenancy For Substantial Annoyance
By: Larry W. Weaver, Esq.
As mobilehome park owners and operators, there are only a few, limited reasons for which you can terminate the tenancy of the residents of your park. Those reasons are, pursuant to California Civil Code, § 798.56: failure of the homeowner or resident to comply with a local ordinance or state law or regulation relating to mobilehomes; conduct by the homeowner or resident, upon the park premises, which constitutes a substantial annoyance to other homeowners or residents; conviction of the homeowner or resident for prostitution, various penal code sections or a felony controlled substance offense if the act resulting in the conviction was committed anywhere on the premises of the mobilehome park; failure of the homeowner or resident to comply with a reasonable rule or regulation of the park; nonpayment of rent, utility charges, or other reasonable incidental charges; condemnation of the park; and change of use of the park or any portion thereof. Of the reasons for which a tenancy may be terminated, only prostitution, various penal code sections or felony controlled substance convictions and substantial annoyance do not first require giving the resident an opportunity to avoid the termination of their tenancy by the service of some prior notice.
In the case of nonpayment of rent, utility charges or reasonable incidental service charges, the resident must first be served with the appropriate three and sixty day notices. If the resident pays the charges within the three day period, the tenancy cannot be terminated and the resident may stay.
Likewise, in the case of a rule violation, the resident must first be served with a seven day notice to comply with the rule(s) of the park. If the resident cures the default and complies within the seven day period, the resident’s tenancy cannot be terminated.
In those cases dealing with the failure to comply with a local ordinance or state law or regulation relating to mobilehomes, the resident must first receive a notice from the appropriate governmental agency. If, after a reasonable amount of time after receipt of this notice, the resident does not comply, the tenancy may be terminated.
Substantial annoyance and evictions based upon convictions for prostitution, various penal code violations, or felony controlled substance offences are unique in that unlike the above grounds for which a tenancy may be terminated, there is no requirement that the resident be given a chance to avoid the termination of their tenancy. In other words, the termination of a resident’s tenancy for substantial annoyance, prostitution, various penal code violations or felony controlled substance offences result from some action on the part of the homeowner or resident, that is so bad, that the legislature has determined that you need not give the homeowner or resident any second chance. It is the termination of a resident’s tenancy for A substantial annoyance, that this article will review; its reasons, the procedures to be followed; some potential pitfalls; and some alternatives.
California Civil Code , § 798.56(b) provides that a mobilehome park tenancy may be terminated for, conduct by the homeowner or resident, upon the park premises, which constitutes a substantial annoyance to other homeowners or residents (emphasis added). Unfortunately, the Civil Code does not define the type of conduct that can be classified as A substantial annoyance. Likewise, because few eviction cases go beyond the trial court level, there are few, if any, cases which can be cited by the park’s attorney, which shed light on the type of conduct that qualifies as a substantial annoyance. Consequently, each time a park seeks to terminate a resident’s tenancy for substantial annoyance, it is as if the case is one of first impression in which there is no precedent for the court to review to determine if the case is a proper case for substantial annoyance. The result of this uncertainty is that it is up to the judge or jury to decide if there is any basis for a substantial annoyance eviction. Accordingly, evictions for substantial annoyance should be reserved for those instances where the conduct is so heinous, that the conscience of all persons of reasonable sensibilities, even the pro‑tenant judge and jury, is shocked and disgusted.
By way of example, the type of conduct which has resulted in successful substantial annoyance evictions has included discharging firearms inside the mobilehome, physical violence, driving through the park at a high rate of speed and rolling the vehicle, trying to run down other residents with a moving vehicle, threatening to kill other residents of the park, supplying drugs and/or alcohol to minors in the park, selling drugs in the park, manufacturing meth in the Park, molesting children and disturbing the peace (generally more than just a loud radio). In each of these examples, the unifying factor is that the conduct was not merely a violation of the park rules, not merely an annoyance, but was so offensive, that the court was able to conclude that it constituted a substantial annoyance for which no opportunity to cure was necessary.
Because a successful substantial annoyance eviction results in the expulsion of the offending homeowner or resident, and often that resident’s mobilehome, the substantial annoyance lawsuit is often times met by an emotional response and vigorous opposition. For this reason, if you believe that you have conduct which qualifies as substantial annoyance, you should immediately consult with the park’s attorney. If, after reviewing the pertinent facts with your attorney, you and your attorney conclude that there is a case for substantial annoyance, you must then follow the procedure outlined below.
The substantial annoyance eviction is commenced by the service on the homeowner or resident of a sixty day notice to terminate possession. As required by Civil Code , § Section 798.57, the management shall set forth in a notice of termination, the reason relied upon for the termination with specific facts to permit determination of the date, place, witnesses, and circumstances concerning that reason. Accordingly, and because of the exact requirements set forth above, it is strongly recommended that this notice be prepared by the park’s attorney. Moreover, the sixty day notice of termination of tenancy for substantial annoyance will set the parameters for the eviction lawsuit and will determine the evidence that may be used at trial. Indeed, in many cases, the court may limit the testimony presented at trial regarding conduct, to that which is set forth in the sixty day notice. Thus, a notice which misstates the facts, is over broad, or too narrow in its scope, may result in a victory for the resident.
As with all types of actions, the successful eviction for substantial annoyance requires diligent documentation by park management; dates, times, places, specific facts and witnesses. Additionally, because substantial annoyance is defined as conduct, which constitutes a substantial annoyance to other homeowners or residents, it is essential that you obtain written statements and/or written objections from the other residents of the park describing the actions and conduct which have given rise to the substantial annoyance claim. If appropriate, the calling of the police and the taking of a report will further help to substantiate the claim of substantial annoyance.
Even more important than documentation is the willingness by the other residents of the park to testify at the time of trial. Clearly, if you are unable to obtain the cooperation of other residents by having them testify at trial, or if they are reluctant and uncooperative witnesses, it is much more difficult, if not impossible, to successfully argue that the complained of conduct constitutes a substantial annoyance to the other homeowners and residents. Moreover, the willingness of other residents to testify at trial will help overcome the inevitable claim by the defendant/resident that they are the victim of an improper eviction based upon a personality conflict between themselves and management.
As can be seen from the above, the substantial annoyance lawsuit is considerably more complex, and usually much more costly, than the typical mobilehome park eviction. Moreover, because of the complexities, it is much more likely that the substantial annoyance lawsuit will necessarily require significant discovery, including interrogatories, requests for admissions, requests for the production of documents and the taking of depositions. As a result, the substantial annoyance lawsuit will generally require more time and money in order to properly prepare the case for trial. Once the case finally goes to trial, the defense will frequently request a jury trial which, by necessity, translates into additional time and money, as the typical jury trial is much more lengthy than the typical court‑tried case (you should expect a minimum of three days). Moreover, as with any jury trial, no matter how well you prepare for trial, and no matter how strong the case, any time a case is decided by a jury, the landlord is, in essence, rolling the dice.
More so than with the typical eviction, there are many pitfalls with the substantial annoyance lawsuit. After having gone to the trouble and expense of preparing a case for substantial annoyance, the complaining residents who form the basis of the case, are often reluctant to testify at the time of trial. This reluctance may be as a result of fear, intimidation, the cost in terms of time and lost wages, or the age old problem of Anot wanting to get involved. As discussed at length above, the testimony of other residents is crucial to the successful termination of tenancy for substantial annoyance.
Another pitfall to avoid is the case where one of the complaining residents was the instigator of the problem, provoked the defendant/resident or engaged in mutual combat. It is essential that the attorney not find out at the time of trial that one of the complaining residents, perhaps even the star witness of the case, actually provoked the defendant/resident into taking the actions which form the basis of the substantial annoyance eviction. Consider the damage done to the credibility of the case when, under cross‑examination, one of the complaining witnesses admits that on the day in question, when the defendant/resident is accused of having attacked, without provocation and threatened to kill the witness (thereby placing the other complaining residents in fear for their own well‑being), the witness was drunk and throwing rocks at the defendant/resident’s coach. Even if the attorney can overcome the lack of credibility of this one witness, the damage done to the case may be fatal. It is for this reason that extensive investigation by the attorney, in part through the pre‑trial discovery process, is so critical to the successful substantial annoyance eviction.
Another problem area involves those cases where the conduct which forms the basis of the substantial annoyance eviction is conduct which is directed against the manager(s) of the park. As set forth in the Civil Code, substantial annoyance is defined as, “conduct…which constitutes a substantial annoyance to other homeowners or residents” (emphasis added). The danger in this type of case is that the court will conclude that the conduct only constitutes a substantial annoyance to management, and not other homeowners or residents. While not impossible to overcome, the case of conduct directed against park management presents special problems and requires that the court or jury conclude that as a resident of the park, the manager is entitled the same protection as the other residents.
A special problem also arises in those cases where the conduct complained of is the conduct of a resident’s guest or family member. In these cases, the defendant/resident will argue that he should not be evicted for substantial annoyance because the conduct is not conduct by the homeowner or resident, as required by the Civil Code. While the courts have held that a tenant may be equally culpable for the conduct of their guests, this defense may be the deciding factor resulting in a judge or jury deciding against the park in what was otherwise a close case.
It is particularly important in the substantial annoyance eviction that management not allow the complained of conduct to become stale, before serving the sixty day notice for substantial annoyance. While a substantial annoyance eviction is always more difficult than the typical eviction, it is important to act swiftly in terminating the tenancy as soon as possible after the conduct occurs. Consider the case where you have served a substantial annoyance sixty day notice for conduct which occurred ninety days before. By waiting too long before acting, a judge or jury could very well conclude that the conduct must not have constituted a substantial annoyance at the time that it occurred and, therefore, decide against the park.
While a review of the above might result in the conclusion that the substantial annoyance eviction is too difficult to risk and/or too costly to pursue, you must also consider the potential liability if you do not act. Because of the contractual obligation you have to your residents to enforce the rules and regulations of the park, you might very well find yourself named in a lawsuit as a defendant for failing to enforce the rules of the park. Moreover, once you have knowledge for instance, that a resident of the park has been observed driving at 70 m.p.h. in the park and endangering other residents, and received complaints regarding same, your failure to take the appropriate action, followed by an accident resulting in substantial property damage, serious injury and even death, could well result in your defending claims of responsibility for these damages.
If you believe that you have a case for substantial annoyance, you should immediately contact your attorney, document your file, obtain written statements and complaints from any witnesses and, with the aid of your attorney, decide on the appropriate course of action. If you and your attorney conclude that the case is an appropriate case for substantial annoyance, then you should immediately proceed with service of the sixty day notice (remember not to accept any rent after this notice is served).
However, not every case will be a proper case for substantial annoyance. If, after careful consideration, this is the conclusion reached by you and your attorney, you should consider, as an alternative, the service of a seven day notice for failure to comply with the rules and regulations of the park. This action by you will help to prevent a future claim that you are not fulfilling your contractual obligation to enforce the rules and regulations and will further serve to let your unruly resident know that you will not tolerate the complained of conduct.
Even if you determine, with your attorney’s help, that the rule violation is relatively insignificant, you should still document the file by serving a warning notice, having the attorney write a threatening letter, or taking some affirmative action to let the resident know that his behavior or conduct is not acceptable.
Likewise, there are some cases where you may determine that the conduct is so severe and outrageous that you cannot wait sixty days for the resident to vacate, assuming he voluntarily vacates, or ninety to one hundred twenty days, or longer, assuming the case goes to trial. In these cases, you may consider, as an alternative to the substantial annoyance eviction, the immediate filing of a lawsuit seeking, among other things, a permanent injunction, and asking the court for a temporary restraining order or preliminary injunction, as appropriate. I have successfully obtained temporary restraining orders and preliminary and permanent injunctions ordering that the defendant not enter the park as a result of the complained of conduct. While the cost of this type of action may even be greater than the substantial annoyance eviction, it has the benefit of being able to obtain immediate results if successful. However, because the relief sought is so extreme (ie., keeping a resident out of the park and out of his home), the court will grant this extreme remedy only in the most severe of cases. Notwithstanding the cost of this type of relief, there are times when an action of this type is appropriate to protect the manager or other residents of the park.
Alternatively, you can also commence an action under 798.88 of the Mobilehome Residency Law by petitioning the Court for an order enjoining a continuing or recurring violation of any reasonable rule or regulation of the Park. Such a petition can also seek a temporary injunction until the hearing on the injunction is held. Moreover, once such an injunction is granted, it remains in effect for a period not to exceed three year and can be renewed where there has been a continuance or recurrence of the violation.
An injunction obtained pursuant to 798.88 may be appropriate where there is conduct which while substantial, does not rise to the level of substantial annoyance. Moreover, you may, for economic reasons, not desire to terminate the offending residents tenancy and face the prospect of another non‑paying space.
Another option which is available to you is to file a civil harassment action. This type of action is most appropriate in those cases where the conduct is directed at a manager and consists of harassing phone calls and/or conduct or threats of violence. The orders which the court grants in these types of cases typically include orders not to assault, threaten, disturb, annoy or harass the aggrieved party. Additionally, the court will often times grant a stay away order, ordering that the defendant not come within a given number of feet of the aggrieved party, his residence or his family. As with any type of lawsuit, this course of action should only be pursued after consultation with your attorney.
In summary, there are many factors to consider before serving a sixty day notice of termination of tenancy for substantial annoyance. The appropriate course of action to be taken can only be determined after careful consideration and investigation of the facts by park management, the park owner and the park attorney. After careful deliberation, and consideration of the likelihood of prevailing in court, you should proceed with the substantial annoyance eviction only when appropriate. In those cases where a substantial annoyance eviction would be inappropriate for any of the reasons discussed in this article, carefully consider your alternatives, including warning notices, seven day notices, petitions to enjoin continuing rule violations, civil harassment actions, and in the most severe cases, immediately filing suit and obtaining temporary restraining orders.
It is only after carefully considering all of your options, the necessary steps to succeed, and the potential pitfalls of each, that your course of action will also be the correct action.