
    Michael Miller et al., Respondents, v Valley Forge Village, Appellant.
    Argued January 11, 1978;
    decided February 16, 1978
    
      POINTS OF COUNSEL
    
      Leonard Halpern and Bernard Meyerson for appellant.
    I. The greater majority of the tenants in defendants’ mobile park have a constitutional right to have the rules enforced as they contracted before the passage of section 233 of the Real Property Law. II. The court erred when it struck out the regulation regarding air conditioners. (People v Arkow, 204 Misc 635.) III. The court erred when it held that the prohibition of the rules and regulations to display a "For Sale” sign unduly restricts the tenants’ statutory right to sell a mobile home. (Barrick Realty v City of Gary, Ind., 491 F2d 161; Whitton Automotive Parts Co. v Yale Elec. Corp., 136 Misc 831, 231 App Div 836.)
    
      Richard Borda for respondents.
    Rules and regulations 4 and 14 are in conflict with section 233 of the Real Property Law and are arbitrary, capricious and illegal. (Simco Retail Stores of N. Y. v Gross Constr. Co., 273 App Div 825.)
   OPINION OF THE COURT

Wachtler, J.

In this declaratory judgment action against the owner of a mobile home park, a small group of individuals who rent space from the defendant challenge park rules banning “For Sale” signs and restricting air-conditioner installations. Although all of the park’s tenants consented to these regulations before taking occupancy, the plaintiffs contend that two rules in particular undermine broad protections guaranteed by section 233 of the Real Property Law and are therefore unenforceable.

In the plaintiffs’ view, because section 233 (subd f, par 3, cl [e]) specifically prohibits management from denying any park tenant the right to sell his mobile home within the park during the lease period, it must be assumed that the right to use any common auxiliaries reasonably necessary to market a mobile home is also guaranteed. And because park owners may not restrict the installation, service or maintenance of appliances by the terms of section 233 (subd f, par 3, cl [b]), the plaintiffs also urge annulment of the park rule predicating a tenant’s right to install a window air conditioner on the prior approval of management and written consent of next-door neighbors.

The lower courts adopted this position, but only by reading absolute substantive rights into a narrow regulatory statute. Aside from any violence to the statute, the grant of relief to the plaintiffs carried an unaccounted for loss to the majority of other tenants.

To be sure, the growth of mobile home parks and the enactment of section 233 are recent as well as unique phenomena. Mobile home owners are not apartment or condominium dwellers; nor are they campers. They have different needs and distinct concerns. Whatever the economic and qualitative benefits of year-round mobile home living, the fact remains that, nomenclature notwithstanding, the homes themselves are relatively immobile. Once "planted” and "plugged in”, they are not easily relocated. Yet they lack the protective enclosure of apartment buildings. As a result, owners and operators of mobile home parks are in a unique position to take advantage of a more or less captive audience.

When this economic leverage led to visible patterns of commercial abuse, the Legislature responded by adding section 233 to the Real Property Law (L 1974, ch 973, as amd by L 1977, ch 131, § 1). Viewed in its entirety, the statute imposes a commonsense rule of thumb: Inherent economic imbalance may not be exploited by park owners either through unfair monopolistic practices or by threat of eviction for failure to comply with burdensome park rules. While park owners are encouraged to "promulgate rules and regulations governing the rental or occupancy of a mobile home lot”, any rule that can be shown to be "unreasonable, arbitrary or capricious” in purpose or practice will be unenforceable (Real Property Law, § 233, subd f). In other words, management should not be able to bilk tenants.

Evidence of overreaching under the cloak of park rules and regulations is singularly absent from the record in this case. The trial court found that the rules were not only adopted by and uniformly applied to all tenants, but for the vast majority were actually an inducement to rent space from the defendant. This consensus was apparently sustained over the years, for a petition signed by some 160 tenants and introduced at trial supported the park rules and asked that they be retained in the interest of preserving a safe, quiet and attractive place to live.

It is not seriously disputed that the contested park rules tend to advance this primary interest. The rule requiring management and neighbor approval for window air-conditioner installations, rather than diluting an ill-defined property right of mobile home park tenants, instead seeks to encourage a more fundamental interest—the expectation of common courtesy as well as reasonable toleration from one’s neighbors. Although no request to install a window unit has yet to be denied to any of the defendant’s tenants, any future denial would at most restrict only the level of noise pollution and resultant disturbance.

The plaintiffs concede this much, but base their objections on an isolated clause in the statute forbidding park owners from "restricting] the installation * * * of any [electric or gas] appliance” (Real Property Law, § 233, subd f, par 3, cl [b]). When read in context, however, a more likely abuse emerges as the actual target. The provision is in fact directed against efforts to foster park monopolies such as laundry facilities by obstructing outside servicemen hired by a tenant to install a competitive appliance. When outsiders perform the work, owners are also precluded under this provision from imposing penalties in the form of mandatory "installation fees”.

Indeed, the statute specifically authorizes park owners to "determine by rule or regulation the style and quality of [exterior] equipment” (cl [a]). Because the noise restriction rule for outside air conditioners clearly operates to the mutual welfare of all tenants rather than the economic advantage of the defendant, its reasonableness should be self-evident.

Similarly, by prohibiting any form of commercial enterprise and any posting of "For Sale” signs within the park by tenants and management alike, the defendant has sought to advance the tenants’ interests, not to strip them of any statutory right. As explained to prospective tenants and discussed at trial, the ban was adopted to deprive outsiders of a ready-made excuse for "just wandering through the park [ostensibly] to find out what is going on, and what is for sale.” To the extent that the absence of individually posted "For Sale” signs deters strangers from browsing indiscriminately or perhaps "casing out” the park, a measure of safety as well as privacy is achieved. Particularly in an isolated community made up in large part of elderly tenants, this safeguard can hardly be called unreasonable. And if banning "For Sale” signs in practice does no more than avoid the unsavory image of a departing huddle of disgruntled tenants or displaced transients, the rule is no less supportable.

The plaintiffs claim that the ban nonetheless impairs an absolute right now guaranteed by the mobile home statute: "No mobile home park owner or operator shall deny any * * * tenant the right to sell his mobile home [or] * * * exact a commission1 or fee” without actually having acted as the tenant’s agent (Real Property Law, § 233, subd f, par 3, cl [e]). Yet the plaintiffs do not even suggest that management has in fact frustrated a single tenant’s efforts to sell or a single prospective purchaser’s ability to buy a mobile home within the signless park. And because the record suggests no unlawful fee practices or untoward pressure to sell through park channels rather than outside agents or advertisements, we find no violation of section 233, either in letter or spirit.

The right to sell a mobile home cannot be assumed to include an incidental right to use any and all methods common to sales of residential property (compare Linmark Assoc, v Willingboro, 431 US 85), for a mobile home park is not ordinary residential property; nor can its owner or management be equated with a municipality. We therefore find no basis for redrafting a private agreement voluntarily entered by the plaintiffs and affirmatively supported by a majority of the park’s tenants.

Accordingly, the order of the Appellate Division should be reversed and rules 4 and 14 of the Rules and Regulations of Valley Forge Mobile Home Park declared enforceable.

Cooke, J. (dissenting).

In response to overwhelming evidence of abuses by mobile home park owners and operators (see NY Legis Ann, 1974, p 215), the Legislature enacted section 233 of the Real Property Law (L 1974, ch 973, as amd by L 1977, ch 131, § 1), which provides that arbitrary, capricious or unreasonable rules and regulations foisted upon mobile home park tenants with little bargaining power shall be unenforceable (Real Property Law, § 233, subd f, pars 1, 3). In this action to declare certain rules and regulations promulgated by defendant, a mobile home park owner, arbitrary and unenforceable and to enjoin the enforcement of such rules, both Special Term and the majority of the Appellate Division determined defendant’s rule 4 (prohibiting posting of "For Sale” signs) and rule 14 (relating to installation of air conditioners) to be invalid. There should be an affirmance; both rules are arbitrary and unreasonable and, therefore, by operation of law, unenforceable.

Defendant Valley Forge Village is the owner of a mobile home trailer park in Bohemia in Suffolk County—a county in which there is a zero percent vacancy rate for mobile home sites. As a condition precedent to leasing space to a tenant in its park, defendant requires its tenants to sign and agree to abide by a list of rules and regulations, two of which are in issue in this appeal.

Rule 14 of the Rules and Regulations of Valley Forge Mobile Home Park provides: "Window air conditioners must be approved by Management. Because of the noise factor, a written note of approval from your neighbor on the side the unit is to be installed must be on file with the Management before the unit can be installed into the mobile home.” There is no such restriction in the statute. Section 233 (subd f, par 3, cl [b]) of the Real Property Law provides in pertinent part: "No mobile home park owner or operator shall * * * restrict the installation, service or maintenance of any [electric or gas] appliance * * * so long as such an installation or improvement is in compliance with applicable building codes and other provisions of law” (emphasis added).. The intent of the Legislature here is clear. Neither legislative history nor the statutory language implies, as the majority suggests, that this provision was enacted to deter monopolistic practices by park owners in prohibiting park tenants from installing laundry appliances. Indeed, the plain language of the statute, by employing the words "any appliance”, demands a more expansive interpretation (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 91, 94-96). Thus, whereas the Real Property Law gives a mobile home park tenant an absolute right, subject to local building codes, to install an air conditioner, rule 14 purports to restrict this right, subjecting it to the approval of management and the written consent of the" tenant’s neighbor.

Rule 14, then, is arbitrary and unreasonable inasmuch as it impermissibly conditions the exercise of a tenant’s statutory right to install an air conditioner on the approval of his neighbor (cf. Matter of Fink v Cole, 302 NY 216). While it is recognized that a noisy air conditioner may disturb the relative peace and tranquility attendant to the suburban lifestyle (but see People v Arkow, 204 Misc 635, 639), rule 14 unwarrantedly presumes the existence of a nuisance and attempts its abatement before it is shown to exist. Action taken which has no foundation in fact or reason is, by definition, arbitrary and capricious (cf. Matter of Schwab v McElligott, 282 NY 182, 186). Moreover, the rule fails to take into account the possibility that a neighbor’s consent might be unreasonably withheld for reasons that have no bearing on the installation of the appliance. The malice or animosity of a cantankerous neighbor may not restrict the exercise of a tenant’s statutory rights. Further, defendant advances no justification as to the reason its consent, which also may be unreasonably withheld, should be determinative of a tenant’s rights. As rule 14 is palpably arbitrary and unreasonable, it must be declared unenforceable.

The same holds true with respect to rule 4. Section 233 (subd f, par 3, cl [e]) of the Real Property Law provides, in part: "No mobile home park owner or operator shall deny any mobile home tenant the right to sell his mobile home within the mobile home park”. Rule 4, however, purports to restrict a basic incident to a tenant’s statutory right to sell his mobile home free from interference of the mobile home park operator by providing that "[n]o 'For Sale’ signs may be shown or displayed.” Both Special Term and the majority in the Appellate Division conceded that defendant does have a right to regulate the number, location and size of signs placed upon the mobile home itself and to prohibit the placing of outdoor signs on the lands. However, both courts found that rule 4 unduly restricts a method which is a necessary concomitant to a tenant’s statutory right to sell his mobile home and concluded that a tenant has a statutory right to place a reasonably sized sign in the window or upon the exterior of his mobile home.

Unreasonably prohibiting the placement of a "For Sale” sign on a tenant’s mobile home converts a tenant’s statutory guarantee of sale free from vexatious interference of the mobile home park owner into a hollow right. The grant of the right to sell necessarily includes a guarantee of the right to employ methods commonly used to market residential property. It is no answer to suggest that the tenant is not restricted from employing alternative methods of communication to inform potential purchasers that his mobile home is for sale. As the Supreme Court has recently noted: "The options to which sellers realistically are relegated—primarily newspaper advertising and listing with real estate agents— involve more cost and less autonomy than 'For Sale’ signs; * * * are less likely to reach persons not deliberately seeking sales information * * * and may be less effective media for communicating the message that is conveyed by a 'For Sale’ sign in front of the house to be sold” (Linmark Assoc, v Willingboro, 431 US 85, 93).

The pretext upon which defendant seeks to justify the promulgation of rule 4—to prevent strangers from wandering through the park, ostensibly to ascertain whether any homes were for sale, when in fact they might be selecting targets for burglary—is specious. While any attempt by defendant to protect the welfare of its tenants is certainly to be applauded, there is simply no basis in fact for concluding that a blanket prohibition of "For Sale” signs will deter potential burglars from riding around park streets to survey targets for crime, particularly where, as here, the rules contain no restriction as to public access to the park streets. Moreover, defendant’s actions with respect to the sale of mobile homes belies any reliance by it on this theory. Defendant admitted that, in functioning as broker for the sale of mobile homes in the park, it places advertisements in local newspapers stating that mobile homes are available for sale in Bohemia, New York. While the actual location of Valley Forge Village does not appear in the ads, the site of the trailer park was invariably furnished to all inquirers over the telephone.

In sum, rule 4 serves no function other than the protection of defendant’s position as broker for the sale of mobile homes in the village. As the prohibition of the posting of "For Sale” signs impairs a mobile home park tenant’s undisputed right to sell his home for no valid purpose (cf. Linmark Assoc, v Willingboro, 431 US 85, supra), it is arbitrary and unreasonable and, hence, unenforceable (Real Property Law, § 233, subd f, par 3).

Accordingly, I dissent and vote that the judgment of the Appellate Division be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler; Judge Cooke dissents and votes to affirm in a separate opinion.

Order reversed, with costs, and rules 4 and 14 declared enforceable. 
      
       Defendant’s rules and regulations provide: "No restriction as to resale of your mobile home which is to be removed from the Park. However, all resales remaining in the park are subject to a 10% commission. Notify Management of your desire to sell so we may help you in obtaining an approved buyer and to supply you with the necessary forms to complete the sale.”
     