Can The MHP Landlord Tenant Act Cover RV's Titled As Mobile Homes?
What Should 55+ Parks be Doing to Keep Their 55+ Status?
The Articles on this page apply only in Arizona communities and deal only with the application of the Arizona landlord tenant laws.
All articles (c) 2016, 2017, "Today & Tomorrow", Manufactured Housing Communities of Arizona. Reprinted by permission.
In 2000 the RV Rental Space Act (RVRSA) was signed into law. MHCA took no position on its merits as it went through the legislature. It was viewed as something between AAMHO, the tenants' association that was lobbying for it, and the RV Parks association that was bargaining with them.
However when the law went into force, MHCA discovered a number of defects in it. Since most manufactured housing communities have RV spaces, MHCA pointed out the many defects to AAMHO and the RV Parks association, and a deal was made to clean the Act up the following year.
Sections 33-2102 through 33-2118 apply to, regulate and determine rights, obligations and remedies for a recreational vehicle space rented in a recreational vehicle park or mobile home park by the same tenant for more than one hundred eighty consecutive days.
The RVRSA imposes a number of duties and responsibilities on landlords that are inappropriate for short term RV space rentals unless the landlords want to agree to them. Making those restrictions apply once a tenant has been on the space over 180 days on a month to month or week to week basis when a landlord does not want to is unjust.
This chapter applies to, regulates and determines rights, obligations and remedies for a recreational vehicle space rented in a recreational vehicle park or mobile home park by the same tenant under a rental agreement for more than one hundred eighty consecutive days.
That was a major change. Instead of being applicable to a tenant once he has been in the park for over 180 days, the RVRSA now applies only when there is a rental agreement for more than 180 consecutive days.
In other words, when a tenant has been in a park for half a year under a one month rental agreement that has renewed on a monthly basis, under the original 2000 version of A.R.S. §33-2101(A) the RVRSA would then begin to apply. But under the 2001 version that is now in effect, the RVRSA does not apply unless there is a single rental agreement for over 180 days--regardless of how long the tenant has been there.
A landlord is not required to enter into an initial recreational vehicle space agreement in excess of one hundred seventy-nine days.
So under the 2001 version of the RVRSA now in effect, the law only applies when there is a rental agreement for over 180 days, and a landlord cannot be forced to agree to a 180 day agreement. By refusing to agree to a 180 day agreement the landlord retains the ability to keep the RVRSA from applying to a tenancy no matter how long the tenant has actually been on the space.
This can be seen in reviewing the 2001 version of SB1409 on the legislative website. Be sure to go to the 2001 First Regular Session of the legislature before searching for the bill.
There are a lot of lawyers and judges who do not understand this legislative history and think the RVRSA applies when tenants have been on spaces for over 180 days, as was the case under the original RVRSA. We have encountered lawyers so arrogant in their belief that this is true that they say we don't know what we are talking about--even though we drafted the 2001 changes to the RVRSA.
If you encounter this belief from another lawyer or a judge, you need to be prepared to explain why it is wrong.
Under 2017 changes to the law, park model space tenants are now eligible for certain relocation benefits when parks are closed due to a change in use. The program and benefits are derived from current laws applicable to mobile home parks.
In the mid-1980s, a number of mobile home parks were closed to redevelop the land that they occupied. Tenants were forced to relocate their homes, often on very short notice. As a result, financial hardships were common and some tenants were forced to simply abandon their homes. To deal with this situation, a series of statutes was added to the Arizona Mobile Home Parks Residential Landlord and Tenant Act (the “MHP Act”).
In 1987, a series of change in use/relocation fund statutes was added to the MHP Act. They created a fund administered by the State to provide money to tenants forced to relocate due to a change of use, to help with moving expenses. Money for the fund comes from yearly tax assessments on tenant mobile homes and from fees charged to landlords closing parks. The fund is required to pay eligible tenants for certain expenses for relocating their homes.
Since 1987, the relocation fund provisions have been changed several times. In 1999, the fund was opened up to allow tenants receiving larger rent increases to relocate and collect from the fund. In 2000, the law was revised to make fund money available to tenants forced to relocate due to redevelopment of the land as an upgraded mobile home park.
In 2005, the law was changed to permit eligible tenants to collect a cash payment of 25% of their relocation benefit from the fund by abandoning their home in the park instead of moving it, provided the park receives a valid, free and clear title. The 2005 change also requires that taxes on the home be current.
In recent years, a number of Age 55+ parks have changed to all-ages parks. To mitigate the consequences of this, the law was again changed to allow tenants to relocate out of the community and be reimbursed by the Relocation Fund.
In 2017, the Arizona Recreational Vehicle Long-Term Rental Space Act (the “RV Act”) was revised to make park model space tenants in mobile home and RV parks eligible for assistance from the Mobile Home Relocation Fund if forced to move due to a change in use or change from Age 55+ status to all-age status (A.R.S. § 33-2149 et seq.). The procedures are similar to those applicable to mobile home space tenants; but large rent increases and changes involving redevelopment of a park are not included under the RV Act and are therefore not applicable to park models.
Literally read, the relocation benefits provisions only cover park models subject to the RV Act. The RV Act only applies to tenants with rental agreements of 180 days or more, so park model space tenants not under such agreements would not be covered, no matter how long they have been in the park. Since most RV parks do not use written rental agreements, this means a lot of park model space tenants would not be covered. But, acceptance of rent for six months or more creates a verbal 180-day rental agreement, and those tenants would be covered.
An argument can be made that the intent of the recent change was to cover all park model space tenants despite the length of their current rental agreement. The safest thing for parks with park model tenants who decide to change the use of the park would be to give all of them the change in use notices required by the statute, and let the Arizona Department of Housing, which administers the program, figure out whether they are covered.
1. Relocations: Actual moving expenses (up to $4,000.00) for a park model. This includes take-down, moving, and set-up costs, provided the unit is moved to a new location within a 50-mile radius. At the discretion of the Housing Department, up to an additional $2,500.00 is available if the unit is ground-set. This applies to all relocations. Again, it is noteworthy that the definition of “change in use” is more restrictive in the RV Act than in the MHP Act. Under the RV Act, it only includes changes from an RV park to some other use, or age restriction changes. Changes to redevelop a park or relocations due to rent increases are not included in the RV Act definition.
2. Abandonments: 25% cash payment from the fund where a tenant abandons a unit in a park involved in a change in use. The tenant must be eligible to relocate the unit. If the tenant chooses not to, the tenant can get the 25% cash payment provided he surrenders a valid, signed and notarized title, together with lien releases and proof of payment of all property taxes on the home.
If there is a change in use of the park, the landlord must reimburse the fund $250.00 for each park model moved for which benefits were paid. This does not apply if the change is in the park’s age restrictions.
Before beginning the termination process for a change in use, landlords should consult with knowledgeable legal counsel. These are difficult and complicated transactions. A simple timing mistake can set a redevelopment and park closure plan back several months.
The Mobile Home Parks Residential Landlord and Tenant Act (MHPLTA) provides at A.R.S. §33-1406 that it applies to "a mobile home space rented in a mobile home park".
The Act defines mobile home space at A.R.S. §33-1409(16) as a space designed to accommodate a mobile home. It defines mobile homes at A.R.S. §33-1409(14) as including HUD homes and pre-HUD homes measuring greater than 8 X 30 feet. Pre-HUD homes are those made before June 15, 1976. That same section specifically excludes RV's from coverage by the MHPLTA, defining an RV as a park model, motor home, camper or travel trailer.
Putting all of this together and it is easy to see that the MHPLTA on its face does not apply to spaces in mobile home parks occupied by RV's.
Unfortunately the MVD uses different definitions when issuing certificates of title for RV's. The definition used by the MVD appears in A.R.S. §28-2001(B). That statute says a mobile home is either a unit greater than 8 X 32 feet or any size unit used as a single family dwelling.
What this means is that an RV as defined in the MHPLTA can be titled as a "MH" (mobile home) under the MVD registration laws. It is commonplace for travel trailers and park models to be titled as mobile homes by the MVD; their certificates of title will designate them as "MH's" in the upper right hand corner.
While they may be mobile homes for purposes of title and registration laws, that does not make them mobile homes for purposes of landlord tenant laws. The definitions in the MHPLTA control whether a given unit is a mobile home for landlord tenant purposes regardless of how it is designated on the certificate of title.
If a landlord wants to rent a space for a travel trailer or park model, it should be sure to use an RV space rental agreement form. Even if the unit is titled as a "MH", if it is really an RV as defined in the MHPLTA, the rental should be documented with an RV space rental agreement.
The MVD cannot turn an RV into a mobile home by simply titling it as one--at least not for landlord tenant law purposes.
So let's say you screwed up and used a mobile home space rental agreement for rental of a space occupied by an RV. What law applies to it?
To begin with, the rental agreement form probably has a number of references to statutes appearing in the MHPLTA. Some forms even say the rental is governed by the MHPLTA. In addition to the rental agreement the landlord will have provided the park's statements of policy to the tenant that clearly apply to mobile home space rentals. And the landlord should have also provided the tenant with a summary of the MHPLTA.
Since both landlord and tenant believed they were entering into a mobile home space rental agreement and since the rental forms are mobile home space forms, the question may arise in a later dispute over whether the MHPLTA really applies. This is important, for example if the landlord wants to terminate the tenancy without good cause, determine how long a rent increase notice must be, figure out what the rules are if a tenant wants to sell the unit on site, etc. The MHPLTA is far more restrictive on landlords than other laws applicable to the rental of RV spaces.
Simply put, the question is whether use of a mobile home space rental form for an RV tenant puts the rental under the MHPLTA.
There are several legal doctrines such as "incorporation by reference" and "estoppel" that can bind parties to things in contracts like rental agreement they would not ordinarily be bound to. If the rental agreement for an RV space adopts the MHPLTA as the law governing the relationship, it is likely a court will enforce it despite the fact that on its own, the MHPLTA would not apply.
The moral of this story is to be careful. Know the difference between an RV and a mobile home. Don't be misguided by the fact that an RV may have a "MH" title--that does not make it one. And be very careful what form of rental agreement you use in these cases. The last thing you want is to inadvertently roll your RV space rentals into the MHPLTA.
Nothing is more important to a park than ensuring its tenants are paying the rent necessary to support the park's operation. Most years that entails increasing rents to ensure there is enough coming in to cover increased operating costs.
Most parks have rent increase anniversary dates of January 1. Since the law requires a 90 day notice to make a rent increase effective, a park with a January 1 anniversary date must get the notice out no later than September 25 of the preceding year. That adds up to 90 days notice plus an extra five days for sending by Certified Mail.
The law allows rent increase notices to be given by personal delivery, regular mail or Certified Mail. Of the three, the law creates a presumption that a notice sent by Certified Mail is received five days after mailing. No such presumption attaches when the notice is given by hand delivery or regular mail. It is for this reason that we recommend rent increase notices be sent by Certified Mail. There is no need to pay for return receipt service.
The law does not limit the number or rent increases in a year. It simply requires they cannot be effective before the renewal of a rental agreement. However, for MH space rent increase notices, the law does say that if the increase combined with all other rent increases curing the preceding 12 month period exceeds 10% plus the CPI increase during that period, the tenant may be eligible for relocation Fund benefits would he choose to move as a result of the increase. In addition to the rent increase notice, the park must also serve a notice of eligibility for relocation Fund assistance should he choose to move. This does NOT apply to rent increases for RV space tenants.
Parks unable to prove receipt of the notice by regular mail or hand delivery may lose a year's worth of the rent increase, depending on what their rental documents say about lease renewals. At the least they could lose several months of the increase. This should not be a problem if the notice is sent by Certified Mail by September 25.
Similar rules apply to rent increases for long term RV space rentals except the notice period is 60 days.Rent increase forms are in the MHCA Blue Book for MH space rentals, and the MHCA Orange Book for RV space rentals.
On January 1, 2009, the Arizona Supreme Court adopted the Rules of Procedure for Eviction Actions (RPEA). Before that, there were no rules regarding how eviction cases were to be processed within the court system. Since more than 80,000 evictions per year go through the courts, that left a pretty big void.
The State Bar created a task force, which in turn created a Rules Committee to draft the new rules. Mike Parham was on this committee representing both the interests of MHCA and the Arizona Multihousing Association (AMA) along with legal aid attorneys, judges, and others. The committee met weekly for about two years. Ultimately the committee agreed upon and finalized a set of rules, which became the RPEA.
The RPEA have been in effect for over eight years. But, in the last couple of years, legal aid attorneys and other tenant and consumer advocates have virtually taken over some influential organizations within the State Bar and the court bureaucracy. They have been using these positions to try and change the rules to impose barriers on landlords in getting evictions through the courts. Though a variety of reasons are given for each proposed change (and these reasons generally focus on sympathy for tenants who might face homelessness), the end game seems to be to try and keep tenants in properties for as long as possible while they try and find new lodgings. In effect, the purpose seems to be to require landlords to provide rent-free housing for tenants who should be removed.
In 2013 these groups filed two rule change petitions with the Arizona Supreme Court. In 2014 one was filed, which in essence requested reconsideration of a 2013 request that had been denied. In 2015, another request for reconsideration of a change that now had been twice denied was filed. In 2016 two petitions were filed—one of which is still pending—seeking to impose mandatory notice and eviction forms on landlords and their attorneys. So far in 2017, two more rule change requests have been filed by the same organizations. Each change would make it more difficult to evict tenants. Generally, sympathy for tenants who might face homelessness remains the stated reason behind each proposal.
On behalf of MHCA, our firm has filed strong objections to each of these requests. AMA and the Arizona Association of Realtors (AAR) have also filed strong objections. We have been largely successful so far but these requests to slow and hinder the eviction process keep coming. Elements of the State Bar and court bureaucracy have clearly decided to target the rental housing industry.
Notwithstanding any other law, an agency of this state and an individual court may not adopt or enforce a rule or policy that requires a mandatory or technical form for providing notice or for pleadings in an action for forcible entry or forcible or special detainer. The form of any notice or pleading that meets statutory requirements for content and formatting of a notice or pleading is sufficient to provide notice and to pursue an action for forcible entry or forcible or special detainer.
The bill’s primary target is the proposal to impose mandatory forms on the industry.
Lobbying in favor of this bill has been a top priority of our three organizations. Despite opposition by the Supreme Court, it looks like the bill will be enacted (final action may have been taken on it before this article is published).
None of our organizations like having to take this action. Even worse than the necessity for legislation to defeat attempts by the courts to regulate the rental housing industry is the fact that distrust by our industry of the courts has been created and it will likely take a long time to go away.
“KISS” is an acronym for “keep it simple, stupid.” The “KISS” principle states that most systems work best if they are kept simple rather than made complicated; therefore, simplicity should be a key goal in design, and unnecessary complexity should be avoided.
My firm believes in this principle. That is why our rental document and notice forms often may look surprisingly short, simple, and understandable. It also explains why forms in the MHCA Blue, Green and Orange Books are concise and understandable. That philosophy has guided us in the development and updating of those publications since their inception.
We frequently see notices, forms, and park rules prepared by others that are amazingly long, complex, and to some extent irrelevant. That is not to say that they are wrong. We simply do not share the philosophy of the lawyers who prepare them. To us it seems silly to devote almost indecipherable legalese sounding paragraphs to covering things that, as a practical matter, hardly ever come up. And, in the case of mobile home park Rules and Regulations, the law specifically requires that they be “sufficiently explicit in prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what must or must not be done to comply.” A tenant could argue that Rules and Regulations written in complex, indecipherable legalese do not “fairly inform” the tenant of what must be done or not done to comply.
We also see many instances where a subject could be covered by short, simple to read sentences but the drafter instead chose to cover it with indecipherable legalese.
Finally, all too often we encounter documents referring to specific statutes and even repeating them verbatim. Our belief is that, as a general principle, the statute does not necessarily need to be referred to (with some exceptions), but it certainly does not need to be repeated as long as the language used in the document complies with it.
We generally do not quarrel with the legality of these documents. But, notices and forms serve a purpose: to communicate to a tenant his or her rights and responsibilities. It seems pointless to try to communicate with someone by using language that he or she does not understand.
Occasionally our clients who also operate parks in California will comment that our forms appear simple and do not “look official.” Arizona practices cannot be judged by California standards.
In Arizona, the rental housing industry has strived for years at the legislature to keep things fair, simple, and straightforward. Our forms reflect the results of those efforts. It may be (and usually is) necessary under California laws and practices for landlords to use complex legal forms that try to cover every conceivable problem and attempt to plug every loophole.
We have not reached that point in Arizona. Arizona courts are far more likely to honor legal documents that communicate the parties’ rights and duties in clear, understandable language. In fact, recently I appeared in court on an eviction action where a disgruntled tenant whose tenancy had been non-renewed claimed that her RV space rental agreement was the “most confusing legal document she had ever seen.” In reality, fortunately, the park was using the MHCA form short-term RV space rental agreement. I was able to read the entire lease to the Court in about one minute, because it consisted of two very simple written pages that clearly set forth the parties’ rights, including how the lease could be terminated, and which law governed. The court agreed that the lease was one of the simplest and easiest to understand legal documents it had seen, and the Park got judgment.
Wikipedia has this to say about “legalese”: it is characterized by long sentences, many modifying clauses, complex vocabulary, high abstraction, and insensitivity to the layman’s need to understand the document’s gist. We try to avoid legalese as much as possible in our communications and forms.
The main benefit of this approach to draftsmanship is that courts and people can understand what they are reading. A fringe benefit is that it allows lawyers to keep their fees low. We have not had many complaints about that.
Most rental communities are financed with mortgages that have payments based on long amortization periods (e.g., 30 years) but come due in a shorter time (e.g., 10 years). At that point most owners will simply refinance the expiring loan with a new one at current interest rates.
These are made by Fannie Mae approved DUS (Delegated Underwriting and Servicing) lenders who screen borrowers and communities and do the underwriting. After closing, loans are transferred to Fannie Mae but the DUS lender will still service them. The loans are written on Fannie Mae forms that are almost completely non-negotiable.
This enables Fannie Mae to offer low interest financing since its investors have assurance they will receive an acceptable rate of return on their money. But it also explains terms in the loans that in effect lock borrowers in for the entire term.
Fannie Mae offers non-recourse loans with fixed rates and terms from 5 to 30 years as well as adjustable rate programs.
Freddie Mac's Seller-Servicer program is similar to the Fannie Mae DUS Program. Until 2014 it was limited to multi-family properties and not available to manufactured housing communities. However, beginning July 1, 2014 it was expanded to include MHCs.
The seller-servicers play much the same role as the DUS lenders do in the Fannie Mae program.
The Federal Housing Finance Agency (FHFA) regulates these two Government Supported Entities (GSEs). On December 13, 2016 FHFA announced a new Rule setting forth criteria under which MHC lending activity can be expanded by the GSEs.
(E) Receive at least 60 days’ notice of a planned sale or closure of the MHC.
CMBS or “conduit” loans play an important role in the market by providing lending options for many properties that cannot otherwise obtain competitive non-recourse financing.
Individual loans are pooled with other loans and become the collateral behind a public offering of mortgage-backed securities. After the loans are pooled, bonds are created and sold to investors.
Banks hold the largest share of outstanding MHC mortgages. Some banks consider MHCs to be a special-purpose property type outside the scope of their normal lending activity, and treat MHC lending conservatively with low loan-to-value requirements and short amortization periods.
Insurance companies have a continuing need to invest, and prefer long-term fixed-rate investments with specific maturities. They focus on higher-quality, mostly age-restricted communities in larger markets with financially strong operators. Their loans are typically a low loan to value and are non-recourse.
1. Park Owned Rentals. Lenders prefer that MHCs not have park-owned rental homes and limit the number of park-owned homes in the community. It is possible to create a process for an affiliate to own and rent homes in the park, but it is tricky.
2. Park Home Sales and Financing. Lenders also tend to prohibit parks from selling, financing, or lease optioning homes. Again, it may be possible to set up an affiliate to act as a dealership in the park.
3. Obsolete Homes. Appearance and maintenance in the community and the homes in it are important factors in whether a lender will make a loan. Fannie Mae and other lenders now routinely require most of the homes in the community to be HUD homes.
4. RVs. Lenders may prohibit or limit the number of RV spaces in a community. It is the preference of lenders allowing them that RVs be confined to a separate section of the community. The longer a borrower can show consistent RV income, the more willing lenders are to underwrite a higher level of that income.
5. Flood Zones. Most lenders will provide financing if part of a MHC is in a flood zone, but may make an adjustment to account for the rental spaces located within the flood zone by not crediting any income from them.
To close a loan a borrower needs the services of an experienced attorney to provide a borrower’s counsel opinion letter, and to ensure that final loan documents reflect the terms that have been approved.
The greatest value a lender gets is the due diligence that is conducted by the borrower’s attorney to render the opinion. It is this due diligence that gives the lender the true value of the opinion.
An opinion letter should only be obtained from an attorney familiar with the kind of loan involved and the nature of the borrower’s business.
Fees charged for these opinions vary widely from firm to firm. If an experienced park operator has a gut feeling that the fee is too high, he or she should shop around or at least question the amount.
The Arizona Mobile Home Parks Residential Landlord and Tenant Act (in A.R.S. § 33-1436) requires mobile home parks to adopt Statements of Policy informing tenants and prospective tenants about the park’s policies in several specific areas. A park can only have one Statement of Policy in place at one time; the document is required to have an expiration date; and it may only be updated with 60 days’ notice to tenants before the current set expires. Because of these impediments to changing the Statement of Policy, it is critical for parks not to adopt a bad or overly-restrictive Statement of Policy.
· The park’s policy regarding subleasing (pursuant to A.R.S. § 33-1454).
The worst mistake a park can make in its Statement of Policy is to set forth a specific method for determining the rent or rent increases. If this is done, the park will be restricted to that method when a rent increase is necessary, and if a tenant challenges a rent increase by filing an Administrative Law Judge or other complaint, the park will be required to prove that it followed the rent increase method set forth in its Statement of Policy. The MHCA Blue Book includes a sample Statement of Policy with good language regarding rent increases. In short, the sample language states that the landlord does not use any particular method for determining rent changes, and that the landlord reserves the right to calculate rent changes “by any method” the landlord selects.
Setting forth a specific yearly date when rent increases must occur is also a bad idea. Normally month-to-month tenants’ rent can be increased with 90 days’ notice, regardless of when the notice is sent (as long as the increase takes effect at the start of monthly renewal period). But if the Statement of Policy provides that rent increases can only take effect on January 1 of each year, the Park’s hands will be tied if the managers get busy and miss the deadline.
Parks would also be wise to avoid giving their tenants a right of first refusal to purchase the park. If tenants are given such a right, it must be disclosed in any future attempts to sell the park, and may hinder or destroy the ability to sell.
Generally, the Statements of Policy should not have a term of more than one year. Since you cannot have more than one Statement of Policy in effect at any given time, if you have adopted one that restricts your ability to change the use of the park, raise the rent, prohibit subleasing, or allows only certain types of homes into the park, you will be stuck with those policies until your current Statement expires. If your Statement has a five-year term, you will be stuck for five years. If you require a change in use before the time stated in the Statement of Policy, the park must make a higher reimbursement to the mobile home parks relocation fund. The park can also be ordered by a court or by an administrative law judge to comply with its Statement of Policy.
Avoid including more than the law requires. Anything outside of the requirements listed above should go into the park’s Rules and Regulations, which are much easier to amend as necessary (they can be amended at any time with 30 days’ notice to the tenants; no expiration date is required).
It is a good idea to review your Statements of Policy occasionally to ensure that you are complying with them, and to see whether they need to be updated. Anyone thinking of purchasing a park should also review that park’s Statements of Policy to make sure that nothing terrible is lurking inside.
If you operate a mobile home park that also offers short-term (daily or weekly) RV space rentals, then your entire park might be considered a “public accommodation” for purposes of compliance with the Americans With Disabilities Act (the “ADA”). Whether this is the case will likely depend on the location of your short-term RV spaces, and whether they are wholly separate from the mobile home portion of the park. The ADA prohibits discrimination against people with disabilities.
If your entire park is a “public accommodation,” the ADA requires it to be accessible to the disabled. Physical barriers (like steps, doors that are difficult to open, curbs that a person in a wheelchair cannot get over) must be removed or circumvented with alternate access points. And, as of January 31, 2013, pursuant to the 2010 Standards for Accessible Design, your existing swimming pools were to have been made accessible to the disabled to the extent “readily achievable.” “Readily achievable” means that providing access can be easily accomplished without much difficulty and expense, taking into consideration the resources available to the pool owner/operator.
Accordingly, large park operators with significant resources will likely be expected to comply. Smaller and medium-sized park operators may receive some leeway, but will be expected to have made some attempts to comply to the extent that their resources allow—particularly when this rule went took effect almost four years ago now.
The 2010 Standards require pool lifts to be fixed, and to meet additional requirements regarding location, seat size, lifting capacity, and clear floor space. For a pool with less than 300 linear feet of wall space, there must be at least one fixed pool lift or sloped entry. For a pool with 300 linear feet of wall space or more, at least two accessible means of entry and exit must be provided—including a fixed pool lift or sloped entry, and a transfer wall, transfer system, or pool stairs. If it is “readily achievable” for a business to provide a pool lift that complies with the 2010 Standards, then the business is required to do so.
Some parks have expressed concerns to me that children or others might play on the lift and either damage it or injure themselves. They have asked whether they can put a lock on the lift so that it can only be used upon request to management, or whether they can keep it in storage and only bring it out when a disabled person needs it.
A public accommodation cannot keep the pool lift in storage and only bring it out when a disabled person actively needs it. This is because the ADA and the regulations implementing it require “equal and independent” access for disabled persons—meaning that a public accommodation cannot force them to depend on a manager or other staff member to gain access. If a manager or staff person is unavailable, the disabled person would be forced to wait or would be denied access altogether.
Additionally, the public accommodation cannot lock the pool lift because of safety concerns about children or others injuring themselves on it. While the ADA allows businesses to consider “legitimate safety requirements,” they cannot consider unsubstantiated generalizations or speculative fears of injury. Public accommodations should instead consider posting signs stating that the pool lift is for the use of disabled individuals only, and that playing on it or misusing it are prohibited.
These issues often come to light when parks receive random telephone calls from individuals claiming to want to visit the park, and asking for information about whether the park has accessible features. If the park lacks such features, it would be unwise to admit that or provide any information over the phone. Any park that believes it may be a “public accommodation”—particularly if it is engaged in daily or weekly space rentals—should consult an attorney and a contractor well-versed in ADA compliance to determine what “readily achievable” steps it can take to comply with the 2010 Standards, including rules regarding pool lifts.
Lately I’ve been getting a lot of calls with questions regarding how age 55+ parks work, when exceptions to the 55+ requirement must be made, and when exceptions should not be made. There seems to be much confusion about what 55+ status means and how it is retained and enforced. Given that serious liability that can arise if a park is not meeting the requirements to be called 55+, it is important for operators to know and follow the mandates.
To qualify as 55+ housing under the Housing For Older Persons Act (“HOPA”), a mobile home park must: (1) have at least 80% of its occupied units be occupied by at least one person who is 55 years of age or older; (2) publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 and older; and (3) comply with federal rules regarding verification of occupancy through reliable surveys and affidavits.
Regular Surveys. While most 55+ parks have leases and published Rules and Regulations that clearly state the parks’ 55+ status, many fail to complete the required surveys. HOPA requires that age verification surveys be conducted every two years. Failure to conduct such surveys can be used as evidence, in a familial status discrimination fair housing complaint, that the park has not demonstrated an intent to operate as housing for older persons. The MHCA Blue Book contains forms that mobile home parks can use for age verification and for conducting these surveys.
80% of Occupied Spaces With at Least One 55+ Resident. Many parks misunderstand this 80% requirement. HOPA requires 80% of occupied units to be occupied by at least one person who is 55 or older. The remaining 20% of units may be occupied by persons under 55. However, HOPA also requires 55+ communities to advertise and hold themselves out to the public as housing intended for older persons. If a 55+ park purposefully markets itself to individuals who are under 55, it could ultimately be determined that the park did not act with intent to operate as housing for older persons. Though 20% of units may be occupied by persons under 55, the 20% was intended for situations where the occupants of spaces who are over 55 die, leaving only surviving spouses or heirs who are under 55. In that situation, the surviving spouse or heir would fall into the 20% and would not jeopardize the park’s 55+ status.
If a park uses its 20% simply to rent to individuals who are under 55, the park may be jeopardizing its 55+ status down the road as older tenants die, leaving only younger occupants on the mobile home space. If no room is left in the 20% for those individuals, the park could fall out of the 80%/20% balance and lose its protection under HOPA.
80/20 and Secondary Age. Many parks also get confused by their “secondary age.” Most 55+ parks require that at least one person on each space be over 55, and have adopted a “secondary age” that everyone else residing in the park must meet. Please remember, this is discretionary and not required by federal law. For example, many 55+ parks require that one person on each space be at least 55 or older, and that anyone else residing in the park must be at least 40. As long as one person residing on the space is 55 or older, the younger occupants of the space who meet the secondary age do not count towards the 20%. Rather, the space itself is fully compliant with the 55+ requirement because at least one person residing there is 55 or older. The park’s 20% only includes spaces where no one is 55 or older.
Exceptions to Secondary Age for Caregivers and Disabled Dependents. I often get questions from managers about spaces where the 55+ tenant wishes to bring in a full-time, live-in caregiver who does not meet the park’s adopted secondary age requirement. Assuming the need for the caregiver is either apparent or has been verified pursuant to fair housing laws, the park would need to make an exception to its secondary age and allow the caregiver to reside on the space to care for the 55+ tenant. Again, this would not jeopardize the park’s 55+ status because at least one person residing on the space would be over 55 and because it is an accommodation required by fair housing laws.
A similar situation occurs when a 55+ tenant becomes the full-time caregiver for a disabled person. I have received several calls from park managers faced with a 55+ tenant who has become the caregiver to a disabled minor child or a disabled adult child. Again, assuming that the disability and need for the caregiver is either apparent or verified pursuant to fair housing laws, the park would be required to make an exception to its secondary age and allow the disabled minor or disabled adult to reside on the mobile home space with the 55+ tenant. This still would not jeopardize the park’s 55+ status because at least one person residing on the space would still be over 55.
Notably, I have recently taken several calls from parks with questions regarding whether a park would have to make an exception to the requirement that at least one tenant on each space be over 55 because the proposed tenant making application to the park, is under 55 but is either disabled or acts as a full-time caregiver for a disabled person. Where no person residing on the space would be 55, the park would not be required to make an exception and allow younger individuals to live on the space because of a disability on the part of the proposed tenant or any proposed occupant.
Keeping Your 55+ Status. 55+ mobile home parks would be wise to review their rental documentation and ensure that it is apparent from the documentation that the park is 55+. Likewise, the park’s advertising should make clear that the park is 55+. The park should ensure that it receives verification of age from each incoming tenant. The park should also confirm that it conducts surveys of all of its tenants every two years to verify that at least one person on each occupied space is over 55. Forms for this purpose are available in the MHCA Blue Book.
Recently I taught an MHCA-sponsored training class for a large Arizona mobile home park operator. That operator mainly owns age 55+ communities. Many questions from attendees focused on how to handle problems associated with aging residents—good residents who pay their rent on time and do not intend to violate park rules, but who, because of the physical consequences of aging and possibly dementia, are unable to handle everyday tasks necessary to stay in compliance.
Managers described residents with no local family who had become unable to care for themselves. Examples included residents who physically could not carry their own trash to the dumpster; a resident who could not clean her home and was so unaware of her surroundings that all of her plumbing (and toilets) had become inoperable; and a resident who had lost control of her body and smelled foul when visiting the clubhouse, prompting complaints from other residents, and causing damage to clubhouse furniture.
Usually tenants like these, though they would probably qualify as “disabled” under federal and state legal definitions, do not ask for reasonable accommodations under fair housing laws. Even if they did, it is questionable whether providing trash hauling services or plumbing repairs would be a “reasonable” accommodation for a mobile home park operator to make, where such an operator does not provide such services and this might fundamentally alter the nature of the operator’s business.
Managers at the training class were hesitant to serve termination/violation notices on these tenants because they are good tenants with nowhere else to go, who simply cannot comply with certain park rules because of their age-related disability. Understandably, the managers did not want to possibly make these tenants homeless because they could not haul their own trash to the dumpster and instead let it accumulate in their driveways, or because they could not properly care for themselves or their homes. One manager had begun carrying one tenant’s trash to the dumpster for her on a daily basis to avoid giving a termination notice. (While incredibly generous, as explained below, a decision to do this must be fully analyzed to account for potential issues and implications, like whether this will need to be done for other tenants too).
What can parks do about these residents? First, parks should review the tenant’s lease and look for a family or emergency contact. A family member may be willing to get involved to help with hiring someone who could haul the trash, clean the house regularly, repair the plumbing, or simply make arrangements for the resident to live elsewhere, where he or she could receive assistance with daily tasks. Unfortunately, often there is no family available to help. Parks with particularly vulnerable elderly residents who have lost the ability to care for themselves or are living in a manner that is hazardous to their health can try contacting Adult Protective Services, which is a division of the Arizona Department of Economic Security. They will sometimes step in and assist the resident with finding needed services.
When those avenues fail, parks can recommend providers to residents for assistance with trash hauling, cleaning, plumbing repairs, and so on. But, elderly residents are sometimes on a fixed income and cannot afford to pay service providers. At that point, the park must decide whether to attempt to assist the tenant with the needed services, or whether the tenant’s violations of the rules are severe enough that a termination notice is warranted.
For some parks, it may make more sense to provide elderly tenants (who have become disabled due to their age) with assistance with tasks the park can easily accomplish without a heavy financial burden, than to serve a termination notice and evict. For example, if an elderly resident cannot move his or her trash from the driveway to the dumpster and it would not be difficult for the park’s maintenance person to do so, the simplest resolution may be for the park to begin hauling the trash for the tenant. If a park does this for one disabled elderly resident, however, it needs to be prepared to do the same thing for any resident physically incapable of doing it himself or herself, to avoid any hint of discrimination. In such a case, the park may eventually need to raise rents to account for the fact that the park is offering additional services—like hauling each tenant’s trash to the dumpster.
Occasionally an elderly resident will ask the park to allow him or her to have a full-time, live-in caregiver. Even if the caregiver is not 55+ and does not even meet the park’s secondary age requirement (if it has one), parks should review such requests and, if the tenant meets the legal definition of “disabled” and has a disability-related need for the caregiver, the park should only run a criminal background check on the caregiver (keeping the new HUD criminal background guidance in mind) and allow the caregiver if he or she meets the park’s criminal background standards. It is wise to also have the tenant sign a Caregiver Addendum to the tenant’s lease, which makes it clear that the caregiver is not a tenant and must leave once the need for the caregiver ceases (either because the tenant recovers, or the tenant dies).
Because of fair housing issues that may arise regarding whether an elderly tenant needs the park to perform certain services as a reasonable accommodation due to the tenant’s disability, before serving a termination notice on a vulnerable, elderly resident, a park should consult with its attorney.
We recently were contacted by a Maricopa Deputy County Attorney acting as legal advisor to the Constables. She sought our views on enforcement of writs of restitution in MHP's since many Constables had been expressing concerns over this. We responded and after review she agreed with our analysis and advised she would so inform the Constables.
Here is a summary of how we responded to her.
Most evictions involve a dwelling unit owned by a landlord. If the tenant is evicted the Constable's job is pretty simple: have the unit opened if the tenant will not open the door or is not home, re-key the locks, and post a notice that any unauthorized entry thereafter will constitute trespass in the third degree (ARS 12-1178(D)).
Dwelling unit procedures are covered by the Residential Landlord Tenant Act (ARS 33-1301 et seq.) and the forcible detainer statutes (ARS 12-1171 et seq.). Those laws forbid removal of tenant possessions except as provided by that Act (ARS 33-1374) and the Act itself has procedures for dealing with tenant belongings either after eviction (ARS 33-1368 (E)) or after abandonment (ARS 33-1370).
These are necessary because (1) most tenant belongings are exempt property and cannot be sold to pay the judgment; and (2) the law (ARS 33-1372) specifically says the landlord does not have a landlord lien against the tenant's household goods.
The key fact to bear in mind is that the landlord owns the dwelling unit and all of this is to restore possession of the dwelling unit to the landlord.
Despite similarities in landlord tenant and eviction law, these tenancies are different from the rental of a dwelling unit covered above.
The governing landlord tenant law is the Mobile Home Parks Landlord Tenant Act (MHPLTA), ARS 33-1401 et seq. This applies to the rental of a space in a MHP (ARS 33-1406). It does not apply when the landlord is renting the mobile home as well as the lot; only when the landlord is renting the lot alone (ARS 33-1407(B)). Throughout the Act it is plain that the tenant is the owner of the mobile home on the lot, not the landlord (see, e.g., ARS 33-1454 (A) and 1478).
The landlord has no right to enter the tenant's mobile home for any reason without specific written permission (ARS 33-1453) (contrast with the Residential Act allowing the landlord the right to enter a dwelling unit for any reason on two day's notice under ARS 33-1343).
Unlike the Residential Act, there are no provisions in the MHPLTA dealing with tenant personal possessions. The theory is that the Tenant's possessions are in his home--the dwelling unit that the tenant owns--and that the landlord has no right of access to the home under the Act.
B. In the execution of any writ of restitution issued pursuant to section 12-1178 or 12-1181, the landlord may provide written instructions to the sheriff or constable not to remove the mobile home from its space, and if those written instructions are provided, the sheriff or constable may fully execute the writ of restitution by removing all occupants and their possessions from the mobile home and from the space it occupies. The mobile home shall then be deemed abandoned and section 33-1478 applies and the landlord may terminate any utility services that are provided by the landlord. An owner of a mobile home in compliance with the provisions of subsection C of this section may recover possession of the owner's mobile home while the title remains in the owner's name.
Some think the MHPLTA is deficient in not addressing tenant personal belongings either after abandonment or eviction. But again, the theory is that since the landlord has no right of access to the tenant's mobile home, there is no reason to address the contents of the home.
Constables are used to dealing with the Residential Act that has clear procedures in ARS 33-1368 (E) for dealing with tenant possessions on the premises at the time of enforcement of the writ (landlord to hold possessions 21 days and give tenant right to reclaim them during that time; thereafter treat them as abandoned and dispose of them).
But in the MHLTA, the home itself is being kept in the park and the tenant has the right to reclaim it at any time so long as title remains in the tenant's name. Reclaiming the home means the tenant always has access to the belongings he left in it. Moreover the landlord has no right to dispose of these belongings since (1) they are normally exempt from execution; (2) under ARS 33-1480 the landlord does not have a landlord lien against the tenant's household goods; and (3) there is no provision anywhere for disposing of tenant possessions left in their homes after eviction as long as the home remains in the tenant's name.
The mobile home itself does not constitute "household goods" under the Arizona Uniform Commercial Code, so the landlord does have a landlord lien against the home. When landlord lien sales result in a transfer of title, then the tenant no longer owns title and his right to recover the home under ARS 33-1481ends. At that point the new owner will have access to the inside of the home by reason of his ownership. If there are tenant belongings in it, the new owner, treating this as an involuntary bailment resulting from a prior tenancy, and lacking any other specific statutory procedures, will dispose of that personal property by following the procedures in the Residential Act, ARS 33-1370.
MHCA has been trying to get a new statute clarifying this area. This past legislative session we drafted HB2258 that at page 7 would have clarified these procedures. Unfortunately we could not even get this Bill through Committee and it died.
1. Constable visits the space, seeks to get the tenant to answer the door. If no one answers, the Constable should post the standard notice of eviction. This includes the trespass language provided for in ARS 12-1178 which specifically applies to MHP's.
2. NEVER re-key the home or put a padlock on it. That would mean the landlord is taking possession of the home and the eviction judgment does not permit that. The only way to exclude the tenant but keep the home in place under ARS 33-1481(B) is to put a lockout device over the doorknobs ("cuff the home") with the landlord keeping the key to the cuffs.
3. Constable makes return of the writ to the Court as having been executed.
4. Since ARS 33-1481 makes it clear that the tenant has the right to reclaim possession of the home under certain circumstances, and since the tenant remains the owner of the home, the landlord should be told that the tenant should be given access to the home to remove personal property as long as he remains title owner. I think the landlord can condition access to reasonable conditions (e.g., normal daylight business hours with advance appointment for no more than a few hours. If the landlord refuses access the tenant can file a motion to compel access with the Court that entered the eviction judgment under Eviction Rule 15(c) and (d).
The Housing and Economic Recovery Act of 2008 required the Federal Housing Finance Agency (FHFA) to issue a duty-to-serve proposal. This law created a duty to serve certain underserved mortgage markets and specified that FHFA help create a secondary market for manufactured housing chattel loans. However the FHFA has said it has authority to ignore that mandate and has disregarded it until now. FHFA oversees Fannie Mae and Freddie Mac.
The FHFA released a proposal last December that details how it now believes Fannie Mae and Freddie Mac should aid underserved markets including manufactured housing. The proposal would give these government sponsored enterprises (GSE’s) credit for certain activities that facilitate a secondary market for them and establish a way that both Fannie and Freddie would be graded.
Under the announced proposal, the GSEs would get credit for certain activities related to manufactured homes financed as real property and blanket loans for specific categories of manufactured housing communities. But the agency would not give credit for chattel loans to buyers of manufactured homes that are not secured by land. FHFA has said in the past that such loans are too risky to the GSE’s.
However, in its December release the FHFA did seek public comments on whether a final rule should authorize the purchase of manufactured home chattel loans and whether a pilot program to see how GSE backed chattel lending would work should be created.
Manufactured home loans are called chattel loans because they only cover the cost of purchase of the home itself. The land is not included since the home is usually on a lot in a rental mobile home park.
In the manufactured housing business, chattel loans on homes in rental communities have become extremely hard to get. The coupling of high regulatory costs of getting a loan and the relatively small loans necessary to finance manufactured homes has meant that lending in this area has virtually stopped.
Fannie Mae and Freddie Mac purchase mortgages from lenders. The ability of lenders to sell mortgages to them makes loans more available and keeps interest rates low. But they will not buy chattel loans. If they were to start including manufactured home chattel loans in their portfolios, financing at relatively low costs would again become available to manufactured home owners.
On behalf of MHCA and MHIA I submitted comments in February 2016 on the duty-to-serve proposal and offered Arizona as a test market for a pilot program opening manufactured home chattel loans up to this kind of lending. These comments included not only loans on “manufactured homes” but also on certain pre-HUD “mobile homes” that have been upgraded to Arizona state standards. We emphasized how important these housing opportunities are to lower income families, fixed income seniors, and minority groups.
I was then contacted by FHFA and asked to supplement those comments by fleshing out how a pilot program would work. I filed a set of supplemental comments to the proposed "Duty to Serve" regulation of the FHFA a month after filing the original comments. In these I explained the Arizona program for upgrading pre-HUD homes to state standards and give specifics on how a pilot program for Fannie and Freddie backed chattel loans on manufactured and upgraded pre-HUD mobile homes would work.
The closing date for comments on the FHFA proposal was March 18, 2016. After that FHFA will be reviewing all comments (they received several hundred), will revise its proposed rule, and then will release the final regulation. My guess is that this will occur around mid-summer.
Many other state and national manufactured housing associations also filed comments. Of those, only Florida also made a pitch for a pilot program. Almost everyone favored including chattel loans in the portfolios of Fannie and Freddie, but Florida and Arizona were the only states offering to so-sponsor pilot programs with the GSE’s to see how such programs can be made to work.
Getting FHFA to do this or even create a pilot program in Arizona is a long shot but it is a prize worth seeking.
December 2016 Update: The FHFA approved a pilot program for MH Chattel Financing. We are hopeful Arizona will be a pilot program site.


In a trend driven by a series of Supreme Court decisions dating back to 1991, American employers are increasingly requiring their workers to sign mandatory arbitration agreements. Under such agreements, workers whose rights are violated can’t pursue their claims in court but must submit to arbitration procedures that research shows overwhelmingly favor employers.
In reviewing the existing literature on the extent of this practice, we found that the share of workers subject to mandatory arbitration had clearly increased in the decade following the initial 1991 court decision: by the early 2000s, the share of workers subject to mandatory arbitration had risen from just over 2 percent (in 1992) to almost a quarter of the workforce. However, more recent data were not available. In order to obtain current data for our study, we conducted a nationally representative survey of nonunion private-sector employers regarding their use of mandatory employment arbitration.
In October 2017, the Supreme Court will hear a set of consolidated cases challenging the inclusion of class action waivers in arbitration agreements. Class action waivers bar employees from participating in class action lawsuits to address widespread violations of workers’ rights in a workplace. The Court will rule on whether class action waivers are a violation of the National Labor Relations Act; their decision could have wide-reaching implications for workers’ rights going forward.
Large employers are more likely than small employers to include class action waivers, so the share of employees affected is significantly higher than the share of employers engaging in this practice: of employees subject to mandatory arbitration, 41.1 percent have also waived their right to be part of a class action claim. Overall, this means that 23.1 percent of private-sector nonunion employees, or 24.7 million American workers, no longer have the right to bring a class action claim if their employment rights have been violated.
Much attention has focused on the use of mandatory arbitration agreements in consumer contracts, such as consumer financial contracts, cellphone contracts, and nursing home resident contracts and the implications of such agreements for consumer rights.2 There is less awareness of the use of mandatory arbitration agreements in employment contracts, but it is no less of a concern for those workers affected by it. These mandatory employment arbitration agreements bar access to the courts for all types of legal claims, including those based on Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. If an employment right protected by a federal or state statute has been violated and the affected worker has signed a mandatory arbitration agreement, that worker does not have access to the courts and instead must handle the claim through the arbitration procedure designated in the agreement.
A crucial 1991 Supreme Court decision, Gilmer v. Interstate/Johnson Lane,4 upheld the enforceability of mandatory employment arbitration agreements, meaning that such agreements now had the potential to substantially change how the employment rights of American workers are protected. But the practical impact of mandatory employment arbitration depends on whether or not American businesses decide to require that their employees sign these agreements as a term and condition of employment. Research from the 1990s and 2000s found that mandatory employment arbitration was expanding and by the early 2000s nearly one-quarter of the workforce was subject to mandatory arbitration. However there was a lack of subsequent research tracking whether this growth trend had continued beyond the early 2000s and describing the current extent of mandatory employment arbitration (see literature review, next section below).
The lack of basic data on the extent of mandatory arbitration is especially concerning given that recent years have seen a series of court decisions encouraging the expanded use of mandatory arbitration. In two key decisions, AT&T Mobility LLC v. Concepcion (2011) and American Express Co. v. Italian Colors Restaurant (2013),5 the Supreme Court held that class action waivers in mandatory arbitration agreements were broadly enforceable. This meant that businesses could not only use mandatory arbitration agreements to bar access to the courts for individual claims, but they could also shield themselves from class action claims. This gave businesses an additional incentive to include mandatory arbitration agreements in employment and other contracts.
In October 2017, the Supreme Court will hear a consolidated set of cases (Murphy Oil/Epic Systems/Ernst & Young) challenging the enforceability of class action waivers in mandatory employment arbitration agreements.6 In this set of cases, the central issue is whether requiring this waiver of the ability to use collective action to address employment law violations is a violation of the protections of the right to engage in concerted action contained in Section 7 of the National Labor Relations Act (NLRA). If the Supreme Court accepts the argument that such waivers are in violation of the NLRA, the Court’s decision would effectively put an end to the use of class action waivers in mandatory employment arbitration agreements. However, if the Court sides with the employers’ arguments in these cases, this will signal to businesses that the last potential barrier to their ability to opt out of class actions has been removed. This would likely encourage businesses to adopt mandatory employment arbitration and class action waivers even more widely.
The overall picture we have is one of mandatory employment arbitration expanding through the 1990s and early 2000s to nearly a quarter of the workforce. This study seeks to determine whether this expansion has continued beyond 2003 and how widespread mandatory employment arbitration is currently.
To investigate the extent of mandatory employment arbitration, we conducted a national survey of private-sector American business establishments, focusing on the use of mandatory arbitration for nonunion employees. The survey was conducted from March to July 2017 and had a sample size of 627, yielding a margin of error at 95 percent confidence of plus or minus 3.9 percentage points.
On the central question of whether employees were required to sign a mandatory “agreement or provision for arbitration of legal disputes with the company,” 50.4 percent of respondents indicated that employees in their establishment were required to enter into this type of agreement.
Although mandatory employment arbitration is usually established by having employees sign an arbitration agreement, typically at the time of hiring, in some instances businesses adopt arbitration procedures simply by announcing that these procedures have been incorporated into the organization’s employment policies. An additional 3.5 percent of establishments had adopted mandatory arbitration using this second mechanism. Combined with the 50.4 percent of employers who require employees to sign an agreement, this means that a total of 53.9 percent of all establishments in the survey had adopted mandatory employment arbitration through one of these two mechanisms.
As mentioned above, the likelihood that an employer will adopt mandatory employment arbitration varies with the size of the employer. Whereas 53.9 percent of all establishments had mandatory arbitration, among establishments that were part of companies with 1,000 or more employees, 65.1 percent had mandatory arbitration. In general, larger organizations with more sophisticated human resource policies and better legal counsel are more likely to adopt policies like mandatory arbitration that protect them against legal liability.11 They could also become trendsetters over time if smaller employers copy these practices that larger employers have proven to be effective in protecting employers against legal actions.
Although around 60 million American workers are now subject to mandatory employment arbitration procedures, this does not mean that the number of workers arbitrating workplace disputes has increased correspondingly. It has not. Mandatory arbitration has a tendency to suppress claims. Attorneys who represent employees are less likely to take on clients who are subject to mandatory arbitration,12 given that arbitration claims are less likely to succeed than claims brought to court and, when damages are awarded, they are likely to be significantly smaller than court-awarded damages.13 Attorney reluctance to handle such claims effectively reduces the number of claims that are brought since, in practice, relatively few employees are able to bring employment law claims without the help of an attorney.
In an earlier study, Colvin and Gough (2015) found that an average of 940 mandatory employment arbitration cases per year were being filed with the American Arbitration Association (AAA), the nation’s largest employment arbitration service provider.14 Other research indicates that about 50 percent of mandatory employment arbitration cases are administered by the AAA.15 This means that there are only about 1,880 mandatory employment arbitration cases filed per year nationally. Given the finding that 60.1 million American workers are now subject to these procedures, this means that only 1 in 32,000 employees subject to these procedures actually files a claim under them each year. These findings indicate that employers adopting mandatory employment arbitration have been successful in coming up with a mechanism that effectively reduces their chance of being subject to any liability for employment law violations to very low levels.
Although class action waivers are one of the most controversial features of mandatory arbitration procedures, it is important to recognize that mandatory arbitration agreements do not necessarily include class action waivers. Among the survey respondents whose companies had mandatory arbitration procedures, 30.1 percent included class action waivers. These tended to be in establishments with larger workforces, so overall 41.1 percent of employees subject to mandatory arbitration procedures were also subject to class action waivers. Relative to the overall workforce, including both those subject to and those not subject to mandatory arbitration, these estimates indicate that 23.1 percent of all private-sector nonunion employees are subject to class action waivers in mandatory arbitration procedures, corresponding to 24.7 million American workers.
The finding that many employers who have adopted mandatory employment arbitration have not included class action waivers in their procedures stands in contrast to the situation with consumer financial contracts, which the CFPB found almost always include class action waivers along with mandatory arbitration.16 One explanation for the lower use of class action waivers in the employment setting is the ongoing legal uncertainty about their enforceability given the NLRA issues that the Supreme Court will be deciding in the upcoming Murphy Oil/Epic Systems/Ernst & Young cases.
Mandatory employment arbitration is the subject of fierce legal and policy debates. There is growing evidence that mandatory arbitration produces outcomes different from those of litigation, to the disadvantage of employees, and suffers from due process problems that give the advantage to the employers who impose mandatory arbitration on their workers.17 What has been less clear is how widespread the impact of mandatory employment arbitration is. In the consumer arena, the CFPB’s 2015 study showed that mandatory arbitration clauses are common, being included in a majority of credit card, prepaid card, student loan, and payday loan agreements.18 By contrast, in the employment arena our knowledge of the extent of mandatory arbitration was limited to a few surveys from the 1990s and early 2000s, the latter of which suggested that nearly a quarter of employees might have been subject to mandatory arbitration by that point in time.
The study described in this report shows that mandatory employment arbitration has continued to grow in extent, and now, in 2017, in over half of American workplaces, employees are subject to mandatory arbitration agreements that take away their right to bring claims against their employer in court. This represents a dramatic and important shift in how the employment rights of American workers are enforced. Rather than having their rights adjudicated through the public courts and decided by juries of their peers, more often now American workers have to bring claims—claims that are based on statutes enacted by Congress or state legislatures—through arbitral forums designated by agreements that their own employers drafted and required them to agree to as a condition of employment.
The employment conditions experienced by the American worker have changed dramatically in recent decades as labor standards and their enforcement have eroded, union representation has declined, and the wage-suppressing effects of globalization have been amplified by an overvalued U.S. dollar and trade agreements that have eroded workers’ power. Against this backdrop of increased economic risk and uncertainty for workers and the disruption of traditional protections, laws protecting employment rights such as the minimum wage, the right to equal pay, and the right to a safe workplace free of harassment or discrimination based on race, gender, or religion have become increasingly important as a workplace safety net. However, these protections are at risk of being undermined if there is no effective means of enforcing them.
Mandatory employment arbitration has expanded to the point where it has now surpassed court litigation as the most common process through which the rights of American workers are adjudicated and enforced. It is likely to become an even more widespread practice if the Supreme Court upholds the enforceability of class action waivers in its October 2017 decision. In fact, if the Court rules in favor of the employers in these cases, imposing mandatory arbitration with class action waivers is likely to become the predominant management practice and workers will find it exponentially more difficult to enforce their rights going forward.
Alexander J.S. Colvin is the Martin F. Scheinman Professor of Conflict Resolution and Associate Dean for Academic Affairs, Diversity, and Faculty Development at the ILR School, Cornell University. His research and teaching focuses on employment dispute resolution, with a particular emphasis on procedures in nonunion workplaces and the impact of the legal environment on organizations.
To measure the current extent of mandatory employment arbitration, we conducted a national-level survey of private-sector employers. The survey was funded by the Economic Policy Institute and administered through telephone- and web-based methods by the Survey Research Institute (SRI) at Cornell University.
The survey population was drawn from Dun & Bradstreet’s national marketing database of business establishments. It was stratified by state population to be nationally representative. The survey population was restricted to private-sector business establishments of 50 or more employees, and the analysis was restricted to procedures affecting nonunion employees. The individual respondents were the establishment’s human resources manager or whichever individual was responsible for hiring and onboarding employees. The reason for use of this individual as the person to respond to the survey is that mandatory arbitration agreements are typically signed as part of the onboarding paperwork when a new employee is hired. As a result, the manager responsible for this process is the individual most likely to be knowledgeable about the documents the new employee is signing. Typical job titles of individual respondents included human resource director, human resource manager, personnel director, and personnel manager.
Participants were initially contacted by telephone and then given the option of completing phone or web versions of the survey. Follow-up calls were made to encourage participation. Where participants had provided email addresses, a series of emails were also sent to prompt completion of the survey. To encourage participation, respondents were offered the opportunity to win one of ten $100 Amazon gift cards in a raffle drawing from among participants in the survey.
Data collection started in March 2017 and was completed in July 2017. A total of 1,530 establishments were surveyed, from which 728 responses were obtained, representing an overall response rate of 47.6 percent. Some survey responses had missing data on specific questions; however, 627 respondents provided complete data on the key variables of interest. The response rate and sample size are similar to those obtained in past establishment-level surveys of employment relations and human resource practices. The median establishment size in the sample is 90 employees, and the average size is 226 employees. Most establishments are single-site businesses, while 38.2 percent are part of larger organizations. These larger organizations have an average workforce size of 18,660 employees. Overall, 5.2 percent of establishments in the sample are foreign-owned.
1. For a general discussion of the state of the law and practice around mandatory arbitration, see Stone and Colvin 2015.
2. The Consumer Financial Protection Bureau conducted a study of the widespread use of mandatory arbitration in consumer financial contracts and has proposed a rule limiting the use of class action waivers in these agreements. Mandatory arbitration in nursing home resident contracts was the focus of a proposed rule by the Obama administration banning their use.
3. For an overview of this research, see Stone and Colvin 2015, 18–23.
4. 500 U.S. 20 (1991).
5. AT&T Mobility LLC v. Concepcion 563 U.S. 333 (2011); American Express Co. v. Italian Colors Restaurant 133 S. Ct. 594 (2013).
6. NLRB v. Murphy Oil USA, Inc., No. 16-307; Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP v. Morris, No. 16-300. For more about the Murphy Oil/Epic Systems/Ernst & Young cases and the implications of the pending Supreme Court decision, see McNicholas 2017.
7. See Feuille and Chachere 1995, 31.
8. GAO 1995. The GAO’s survey initially indicated that 9.9 percent of establishments had mandatory arbitration procedures; however, on follow-up a number of them indicated that they had made mistakes in reporting, such as confusing union labor arbitration procedures with nonunion mandatory employment arbitrations. Adjusting for these erroneous responses, only 7.6 percent of the establishments actually had mandatory employment arbitration.
10. This estimate is based on the Bureau of Labor Statistics report “Union Members – 2016,” released January 26, 2017, which reports an overall private-sector workforce of 115.417 million, among which 8.437 million are union-represented private-sector workers, with the remaining 106.980 million workers being nonunion.
11. See, e.g., Edelman 1992, showing that larger organizations are more likely to adopt organizational policies designed to protect them from the impact of civil rights laws.
13. See Colvin and Gough 2015.
14. See Colvin and Gough 2015 (1027), reporting that 10,335 claims were filed with the AAA over the 11-year period from 2003–2013.
15. See Stone and Colvin 2015, 17.
16. The Consumer Financial Protection Bureau’s Arbitration Study found that over 90 percent of consumer financial contract arbitration clauses that it studied contained class action waivers (CFPB 2015).
17. See Stone and Colvin 2015.
19. A study by Zev Eigen (2008) found that a majority of Circuit City employees he interviewed were unaware that they had signed arbitration agreements or of the import of such agreements, even though the company had a longstanding policy of requiring its employees to sign mandatory arbitration agreements and even though Circuit City’s arbitration policy had been the subject of an important case on the enforceability of these agreements that was decided by the Supreme Court in 2001.
20. One of the most important differences is that labor arbitration procedures are jointly established and administered by unions and management, in contrast to mandatory arbitration, which is unilaterally established by the employer. In addition, most labor arbitration procedures do not bar employees from bringing statutory employment claims separately through the courts.
Colvin, Alexander J.S. 2008. “Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?” Employee Rights and Employment Policy Journal vol. 11, no. 2, 405–47.
Colvin, Alexander J.S. 2014. “Mandatory Arbitration and Inequality of Justice in Employment.” Berkeley Journal of Employment and Labor Law vol. 35, 71–90.
Colvin, Alexander J.S., and Mark Gough. 2015. “Individual Employment Rights Arbitration in the United States: Actors and Outcomes.” ILR Review vol. 68, no. 5, 1019–42.
Consumer Financial Protection Bureau (CFPB). 2015. Arbitration Study: Report to Congress, pursuant to Dodd-Frank Wall Street Reform and Consumer Protection Act § 1028(a).
Edelman, Lauren B. 1992. “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law.” American Journal of Sociology vol. 97, no. 6, 1531–76.
Eigen, Zev. 2008. “The Devil in the Details: The Interrelationship Among Citizenship, Rule of Law and Form-Adhesive Contracts.” Connecticut Law Review vol. 41, no. 2, 1–50.
Feuille, Peter, and Denise R. Chachere. 1995. “Looking Fair and Being Fair: Remedial Voice Procedures in Nonunion Workplaces.” Journal of Management vol. 21, 27–36.
General Accounting Office (GAO). 1995. Employment Discrimination: Most Private Sector Employers Use Alternative Dispute Resolution. GAO/HEHS 95-150.
McNicholas, Celine. 2017. “Supreme Court Should Uphold Working People’s Fundamental Rights in Murphy Oil.” Working Economics (Economic Policy Institute blog), September 27.
Stone, Katherine Van Wezel, and Alexander J.S. Colvin. 2015. The Arbitration Epidemic. Economic Policy Institute Briefing Paper no. 414.