Mark Downard and Marie Kettle are learning the expensive way that fairness is usually in the eye of the promiser and seldom goes past the fine print of a contract.
Shortly after purchasing their mobile home last year in Laurelwood Estates Mobile Home Park, the young couple learned that the city had purchased the mobile home park for the future site of a new mall. To accommodate the mall, the city has implemented a program to assist in relocating the mobile home park's residents.In Downard and Kettle's case, the city planned to buy their mobile home for about $11,000. But in April, Downard and Kettle did the one thing that makes them ineligible for the city's relocation plan - they paid their space rent two weeks late. Because so many Laurelwood residents began paying their rent late when the city purchased the property in March, the city said only those current on rent and property taxes would be eligible for the assistance program.
"We didn't want to be relocating people away from their responsibility with the trailer park," said Ron Madsen, director of redevelopment.
The city also leased the park back to the previous owners, RM Management, so it wouldn't have to run the park while waiting to begin work on the mall. Included in that lease agreement are incentives so RM Management won't refill spaces vacated during the relocation process. To compensate for lost rent, each vacant mobile home spot at the end of the lease agreement is worth another $1,500 for RM Management.When Downard and Kettle hadn't paid their $247 rent by April 10, RM Management issued them a notice giving them three days to pay or move out. When the rent, originally due on April 1, still wasn't paid on April 14 the management filed an eviction lawsuit in 4th Circuit Court. By filing the eviction suit, RM Management met the terms of the contract with the city, thus qualifying for an extra $1,500 for Downard and Kettle's mobile home space.
The young couple hired an attorney and filed a counter lawsuit against RM Management, claiming the eviction suit is inconsistent with past park management policies and was driven by financial incentives to clear out the park.
"Our concern is that the management of the park is dealing in bad faith," said attorney John Musselman. "We believe they have a financial incentive to create defaults."
Musselman said Downard and Kettle were anticipating a shortage of funds for April and had a verbal agreement with park managers to pay their April rent late. This was their first case of paying their rent late. RM Management denies making any such agreement.
Downard and Kettle's countersuit claims they tried to pay the rent on April 15, but RM Management wouldn't accept it. Musselman said RM Management's past policy was to allow tenants to be late three times before filing eviction papers. Their attorney said the $1,500 bonus offered by the city was the only reason RM Management didn't accept their rent this time.
"There's no question in my mind that (without that bonus) they would have accepted that rent and encouraged them to be timely in the future," Musselman said.
By paying their rent two weeks late one time, Downard and Kettle are facing a potential loss of several thousand dollars. They've accrued several hundred dollars in attorneys fees and could lose treble damages in the eviction suit.
Most important to them, however, they might be excluded from the city's relocation program. Rather than selling their mobile home to the city and moving into different living quarters, they could be forced to move their mobile home at their own expense with no other mobile home park to move to.
"These people made a legitimate attempt to pay their rent and now they're staring this in the face," Musselman said.
The couple appealed to the Provo Redevelopment Agency's executive committee last week and asked it to recognize that being evicted for one late payment is inconsistent and unfair. Downard and Kettle know the eviction issue is now a matter for the courts to decide, but the city still has the option to include them in the relocation plan. RM Management did not attend the first appeals hearing because the hearing had no bearing on the eviction suit.
The committee, composed of Mayor George Stewart and councilmen Dennis Hall and Jim Daley, is expected to hold another hearing next week before it rules on the appeal. If Provo grants an appeal, it would cost the city $1,500 plus the relocation costs.
The mayor is also worried that granting the appeal will set a precedent followed by others evicted from the park for more legitimate reasons. Some Laurelwood tenants issued eviction notices are several months delinquent on rent.
"This precedent could come back to bite us real hard," Stewart said.
Hall said it wasn't the city's intention to kick people out of the park on a technicality. Councilwoman Shari Holweg said the City Council made a promise to Laurelwood residents to deal with them fairly, and being two weeks late on a rent payment is not good cause to exclude Downard and Kettle from the relocation plan.
"We promised those people that they would be treated fair throughout this process and we need to stick to that promise," Holweg said.
Stewart plans to meet with Laurelwood managers prior to next week's second hearing to see if an agreement can be reached between the park managers and Downard and Kettle. The mayor said RM Management has been responsive to concerns over fairness in the past and believes it will be responsive in this case also.
"If the allegations are true then perhaps there is some unfairness here," the mayor said.