Part IV
Noncompliance with Standards
Prohibited Acts
Dealer / Distributor and Consumer Remedy.
Prohibited Acts
Title VI §610
(a) No person shall
(1) Make use of any means of transportation or communication affecting interstate or foreign commerce or the mails to manufacture for sale, lease, sell, offer to sale or lease, or introduce or deliver (transfer), or import into the United States, any manufactured home which is manufactured on or after the date of any applicable Federal Mobile Home construction and safety standard under this title and which does not comply with such standard.
You now know that the manufacturer/ retailer/ dealer/ distributor cannot sell a home, which they know does not conform to the federal standards.
Nonconformance with standards
Title VI §613 (a)
If the secretary or a court of appropriate jurisdiction determines that any mobile home does not conform to all applicable Federal Mobile Home Construction and Safety Standards, or that it contains a "defect" which constitutes an "imminent safety hazard", after the sale of such "mobile home" by a manufacturer to a distributor or dealer/retailer and prior to the sale of mobile home by such distributor or dealer/retailer to a purchaser.
(1) The manufacturer shall immediately repurchase such manufactured home from such distributor or dealer
(2) The manufacturer, at his own expense, shall immediately furnish the purchasing distributor or dealer the required conforming part or parts or equipment
Numbers (1) and (2) were abbreviated, it seemed only relevant that you realize that the dealer / distributor had remedies available to them in the event that a manufacturer delivered a defective product. The rest of number (1), (2) layout what expenses incurred by the dealer / distributor that can be recovered. Subsection (b) not shown grants the dealer / distributor the right to sue in the event that the manufacturer fails to comply. In short, the retailer/ dealer/ distributor wields a mighty big sword.
This section of the law provides the dealer / distributor with remedy for financial loss caused by a defective product delivered by a manufacturer, but what about the consumer? The consumer remedy comes in under the section of the Act for "notification of defects".
Notification of defects
Title VI §615
(a) Every manufacturer of manufactured homes shall furnish notification of any defect in any manufactured home produced by such manufacturer which he determines, in good faith, relates to a Federal manufactured home construction or safety standard or contains a defect which constitutes an imminent safety hazard to the purchaser of such manufactured home, within a reasonable time after such manufacturer has discovered such defect.
(e) If the Secretary determines that any manufactured home -
(1) Does not comply with an applicable Federal manufactured home construction and safety standard prescribed pursuant to section 5403 of this title; or
(2) Contains a defect, which constitutes an imminent safety hazard, then he shall immediately notify the manufacturer of such manufactured home of such defect or failure to comply. The notice shall contain the findings of the Secretary and shall include all information upon which the findings are based. The Secretary shall afford such manufacturer an opportunity to present his views and evidence in support thereof, to establish that there is no failure of compliance. If after such presentation by the manufacturer the Secretary determines that such manufactured home does not comply with applicable Federal manufactured home construction or safety standards, or contains a defect which constitutes an imminent safety hazard, the Secretary shall direct the manufacturer to furnish the notification specified in subsections (a) and (b) of this section.
(g) A manufacturer required to furnish notification of a defect under subsection (a) or (e) of this section shall also bring the manufactured home into compliance with applicable standards and correct the defect or have the defect corrected within a reasonable period of time at no expense to the owner, but only if -
(1) The defect presents an unreasonable risk of injury or death to occupants of the affected manufactured home or homes;
(2) The defect can be related to an error in design or assembly of the manufactured home by the manufacturer.
The Secretary may direct the manufacturer to make such corrections after providing an opportunity for oral and written presentation of views by interested persons. Nothing in this section shall limit the rights of the purchaser or any other person under any contract or applicable law.
It should be noted that the use of the word injury has not been connected to personal and this occurrence can only be found in the purpose and in the definition of "imminent safety hazard". The legal definition for "injury" is to person or property.
(i) Where a defect or failure to comply in a manufactured home cannot be adequately repaired within sixty days from the date of discovery or determination of the defect, the Secretary may require that the manufactured home be replaced with a new or equivalent home without charge, or that the purchase price be refunded in full, less a reasonable allowance for depreciation based on actual use if the home has been in the possession of the owner for more than one year.
Remember what was said about Lynda McDonnell from the Center for Auto Safety, in almost every instance that she recommended something you could find changes to Senator Brock's Bill that reflects her suggestions. This section contains many of her suggested changes.
Lynda McDonnell from the Center for Auto Safety
"The manufacturer is not obligated to buy back or repair free of charge a consumer's defective home. In the same way the bill grants the dealer who owns a defective mobile home the right to sue a manufacturer to force him to buy back or repair the unit. The bill does not grant the same right to consumers. This discrepancy unfairly discriminates against the consumer.
Read the end of subsection (g) again if you did not catch it, this was added along with all of the rest of the consumer rights in this section that she suggested to lawmakers.
Lets stop here and discuss a few points, and look at a couple of the other definitions within this Act not yet discussed. Distributor and dealer/retailer were already discussed in section II under Title VI §603 (5)
Title VI §603
"Purchaser" is defined as the first person purchasing a manufactured home in good faith for purposes other than resale.
"Imminent Safety Hazard" means an imminent or unreasonable risk of death or severe personal injury.
Given the history of mobile home performance during severe weather, could a reasonable person say that a mobile home, unanchored to the ground, improperly anchored to the ground or improperly supported to resist windstorm damage does not pose an unreasonable risk of death or severe injury to the occupants of such mobile home. We already know what lawmakers in 1973 considered a mobile home that was improperly supported or anchored an unreasonable risk of severe injury, or death to the occupants. Again, the Secretary of HUD had the authority to create standards for whatever it took to carry out the Congressional intent of this Act.
Title VI §603
"Defect" means a defect in the performance, construction, components, or material of a "mobile home" that renders the home or any part thereof not fit for the ordinary use for which it was intended.
The short version of this is, until a "mobile home" can be shown by proper inspection to not pose an unreasonable risk of death or injury to the occupants or does not contain a defect as defined by this Title, the home does not comply with the federal standards. There can be no standard or regulation written that causes a manufacturer to deliver a product that does not conform to the federal standards. This last sentence will be explained in detail later in the report.
Let's look back to FHA Commissioner Bill Apgar's recent congressional testimony, which was discussed earlier; "it is important to recognize that there is a direct correlation between the installation of a manufactured home, and the homes compliance with the Federal Standards. A home that is incorrectly installed may not comply with the Standards". If a bedroom door does not close, a toilet will not flush because of improperly installed drain lines, a window cannot be opened or closed without excess force or cannot be locked, a front door or back exterior door will not lock or is difficult to close or open, etc. are these items fit for the ordinary use for which the were intended. These types of items do require maintenance from time to time, but should they require maintenance the day you move in or for that matter, anytime within the first 5 years of occupancy. If they do not work as intended they represent a defect in performance and may relate to a construction defect, design defect, or a defect in components. Improper on-site assembly or completion of a mobile home can cause all of these items and many more to be non-compliant with the federal standards. These other items will be listed in the last section of the report just for information purposes.
What you should also stop and consider is that these kinds of defects could become imminent safety hazards; here are just a couple of examples. The exterior doors will not close or lock, or the windows will not lock; this could allow unabated access to a criminal and is an unreasonable risk of severe injury or death. If the door or window locks, worked as intended would this not be considered a reasonable measure to prevent entrance of such a person? The windows are difficult if not impossible to open; this could prevent or hinder emergency egress when seconds count and poses an unreasonable risk of severe injury or death. If the window worked as intended would this not be considered a reasonable measure to allow a person to escape? Of course, a person can always break the glass, but then they could seriously injure themselves or possibly even die from injuries sustained on the broken glass shards.
These are the types of issues that drove lawmakers to create and pass this Act into law. Lawmakers were more concerned about the performance of a mobile home as it related to safety of the occupants, which can't happen until it is being lived in and this is the reason for performance-based standards versus specifically prescribed standards. The only criteria for which specifically prescribed (materials) the manufacturer is to use, and how they are put together is that the manufacturer use accepted engineering practices in the design and construction of the home. The overriding factor is always the performance of the home and everything should be directed towards this objective. The only time that materials are specified is in the context of performance or a construction method that is in the context of performance. Performance based standards that guarantee that the home will perform in a manner that makes it fit for ordinary use it was intended for and does not pose an imminent safety hazard to the occupants of the home. If the drainpipes are improperly installed and this causes the toilet to clog this is a defect in construction as per the definition of defect and not routine maintenance problem or too much toilet paper as the industry likes to assert.
FMHCSS Regulations
3282.404 (c) Notification pursuant to manufacturer's determination.
However, Where only one manufactured home is involved, the manufacturer need not submit the plan if the manufacturer corrects the manufactured home within the 20 day period. The manufacturer shall maintain, in the plant where the manufactured home was manufactured, a complete record of the correction. The record shall describe briefly the facts of the case and state what corrective actions were taken, and it shall be maintained in a separate file in a form that will allow the Secretary or an SAA to review all such corrections.
Section 615(d) does not grant the Secretary of HUD the authority to exclude under any circumstances this notification of defects and most especially to segregate records from the primary records. This notice is required to be sent by the manufacturer to the purchaser of any manufactured home even if it is one home and to the Secretary of HUD on every single manufactured home in which a defect is discovered. If a correction is required to be made per subsection (g) of section 615, it is the Secretaries duty to approve the plan for repair of the defect. Why should we do all of this? It is an integral part of monitoring the manufacturer to verify that they are complying with the standards. Without this, it is virtually impossible to measure the manufacturers performance to determine if an increase in the frequency of inspections is needed. In addition the Secretary of HUD cannot carry out his duties under Section 614 (c)(5) if this information is not properly assessed and specific defects could go undetected.
Think about the effect this has on the consumer. Should a defect in design or construction occur, it would be impossible for inspectors to detect that such has occurred. This means that there could be 1000's of homes built with the same defect. If this were an imminent safety hazard, it could cause injury or death to others who are not made aware of the existence of such a defect.