"Deceptions Lair"

Summary History of the National Manufactured Home Construction and Safety Standards Act

By John Taylor, Founder

The American Internet Society of Manufactured Home Owners

Glossary
'Mobile Home Act' – The National Manufactured Home Construction and Safety Standards Act.

'Federal Standards' – Federal Manufactured Home Construction and Safety Standards.

'Secretary' – The Secretary of Housing and Urban Development

'Mobile home' – referred to as a "manufactured home"

‘[ ]’ – Reference

Prelude

In the Original Mobile Home Construction and Safety Standards Act of 1974; "The Congress declares that the purposes of this chapter are to reduce the number of personal injuries and deaths and the amount of insurance costs and property damage resulting from mobile home accidents and to improve the quality and durability of mobile homes".

In 2000, The 106^th Congress passed industry-drafted legislation, which gave the Act all new purposes, which seek to do no such thing. The 106th Congress, in affect, declared that the number of injuries and deaths and the amount of insurance costs and property damage resulting from mobile home accidents, are acceptable.

The Owens Corning Fiberglass Corporation survey from the early 1970’s revealed that 51% of mobile home purchasers experienced construction related problems after moving in, which is lower than the AARP survey in 1999, which found that 61% of mobile home purchasers experienced construction related problems within the first year of moving in. It is apparent that since the federal government began its supervision of this industry, construction related problems have become more pervasive.

The AARP 1999 survey disclosed only about 35% of mobile home owners were able to obtain repairs under the warranties provided by this industry. In 1973, the State of Wisconsin performed a similar survey concerning warranties, which found that out of 85% of those who experienced defects in their mobile homes; only about 50% were able to obtain repairs under the warranties provided by this industry. It is apparent that since the federal government began its supervision of this industry, this industry’s failure to honor their warranties has become more pervasive.

The December 1999, a National Fire Protection Association report on fires in manufactured homes reports that the fire death rate per 100 fires for all manufactured homes has shown a net trend upwards from the early 1980’s, to the most recent years of reported fire experience. It is apparent since the federal government began its supervision of this industry, that fire related deaths, have shown a net trend upwards.

The National Weather Service reported in January of 2001 the current population shift towards manufactured housing is reversing three-quarters of a century of reductions in the overall number of severe weather related injuries and deaths, for all types of housing. If this trend continues unabated, in the near future, the numbers would surpass pre-1925, injury and death tolls in the United States, erasing all the improvements in early warning forecasting, and building science, made over this same period. Currently, approximately 12% of the nations population lives in manufactured homes. Given these facts, it can be concluded that the vast majority of the yearly overall severe weather related injuries and deaths, come from the manufactured home population. It is apparent that since the federal government began its supervision of this industry, severe weather related injuries and deaths have shown a net trend upwards.

The cost of insurance, by percentage, taking into account inflation, while decreasing some, remains significantly higher for mobile homes, per 100 dollars of property valuation, than for other type of housing. Large-scale catastrophic events such as Hurricane Andrew turned the remains of mobile homes into 100’s of thousands, perhaps millions, of missile like projectiles, causing significant damage to other types of structures. This collateral damage translated into higher insurance costs for all Americans.

All of the information that is publicly available from government and from private sources indicates that overall, the safety, durability, and quality of manufactured housing has at best, remained largely stagnate, and the number of injuries and deaths caused by ‘mobile home’ accidents have increased, since HUD began its federal supervision of this industry. Given the purposes of the original legislation, this should raise serious questions.

No time will be spent explaining the State’s role in this program. Congress only provided for a State to assume the Secretary’s responsibility in accordance with 42 USC §5422, for enforcing the ‘federal standards’. In spite of the clear legislative language, the ‘Secretary’ has misconstrued this section to undermine the States right to enforce the ‘federal standards’ as Congress had intended.

Legislative History

Before passage of the legislation that would become known as "The Mobile Home Construction and Safety Standards Act" of 1974, Congress expanded the coverage of the legislation to include "any 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" [42 USC §5402(3)].

Everything used in the construction of a home serves some purpose, right down to the batten strips that hide the joints between the vinyl covered sheetrock, which is used in the construction of most mobile homes. While most people tend to overlook the significance of such defects, they should not be treated as insignificant when the technology and knowledge exists to install this component correctly. One might consider, if what is readily observed has been done in a half hazard manner, what else has done in a half hazard manner; i.e., was the structural assembly, which is no longer visible for inspection, done with the same lack of due care (latent defects).

As revealed in the legislative history for this Act, lawmakers in 1973 – 1974 were fully aware that new mobile homes were rarely purchased as mobile homes, but were purchased as permanent residences that once sited, were rarely moved. Industry representatives, and industry supporters, who desired more federally backed financing for their product, repeatedly made this claim. Hence, lawmakers’ drafted legislation for the promulgation of ‘federal standards’ for the construction and safety of mobile homes, which they believed, and as the manufacturers asserted, were most often moved from the factory to a permanent home site. This reality is reflected in the legislative record for the Manufactured Home Construction and Safety Standards Act of 1974, in which, Congress stated, a manufactured home shall be:

"in compliance with all applicable standards under section 604, including
– by way of example, but not limited to the setup of the home, and the
installation and connection of accessories and utilities – when delivered
to the buyer."

Up until a few months before the bills passage, the legislation was not to contain the word "Construction" in its title. The standards to be promulgated because of this legislation were not to contain the word "Construction" within their title. There was no definition within the Act defining "mobile home construction". Defect was defined to include any "substantial" defect. This legislation’s coverage if "construction" were not included, while not the intent, could have been used by those who would take a demagogic approach to it, to limit the coverage of the legislation to only defects, that posed an unreasonable risk of severe personal injury or death. In spite of the clear legislative language, and the legislative record, HUD’s current policies purvey the notion the Act has no objective beyond safety, which as discussed, HUD has failed in this regard as well.

The bill was then to be known as the "The National Mobile Home Safety Standards Act", and the standards were to be called "Mobile Home Safety Standards". If Congress’s purpose was to regulate the construction of mobile homes, only as it related to substantial or serious defects, then the bill, as was pointed out more than once during the testimony in regards to this legislation, was already written to permit this. Simply stated, there was no reason to make the significant changes to be discussed, for the inclusion of "construction". It should be noted, when citing the testimony concerning the reasons for the inclusion of "construction", this is the only time on public record, where any explanation or reason, is given for the changes, which Congress made to the legislation between the time of this testimony, and the legislation’s enactment.

Lynda McDonnell, from "The Center for Auto Safety", July 24^th, 1973, before the Senate Subcommittee on Housing and Urban Affairs.

"First, we feel that the scope of Senator Brock’s bill should be extended to explicitly include construction quality as well as safety. As it is now written the bill ties safety directly to accidents, injuries and deaths caused by defective components in a mobile home. But in housing, the durability, quality and safety of construction are inextricably combined. Most of the more than 1,000 consumer letters we have received do not deal with serious safety defects, which resulted in injuries or deaths. Instead, the overwhelming majority deal with construction complaints ranging in severity from scratched paneling to walls separating from roofs. A survey of mobile home owners conducted by Owens Corning Fiberglass Corporation indicate how prevalent mobile home construction defects are. In that survey, 51 percent of the mobile home owners interviewed said they had construction related problems immediately after moving into their homes".

"While construction defects may not often result in injuries or deaths, they can result in extensive economic loss to the mobile home owner".

"For example, the construction defects we hear about most often are leaks. Leaks at first appear to be insignificant but if they go undiscovered or un-repaired, delayed by buck-passing between manufacturers and dealers who both deny responsibility for repairing the home, simple leaks can cause hundreds or even thousands of dollars worth of damage. Warped paneling, rotting floors and wet insulation that must be removed and replaced are frequently the end results of mobile home leaks. Senator Brock’s bill seems to have the intention of reducing such property losses. But safety as it is defined in the bill is too narrow a purview to include most common mobile home defects. For this reason we urge the committee to amend the bill to include construction and change the bill’s title to "The Mobile Home Construction and Safety Standards Act of 1973".

The changes, which occurred to the bill after the above testimony include, but are not limited to the following:

Without any doubt, Congress made changes to the bill that are consistent with the reasons provided by Lynda McDonnell and by others, such as Dr. Margaret Drury of the Urban Institute and the Executive Secretary for Lt. Governor Martin J. Schreiber of Wisconsin. Dr. Drury stated:

"The Brock bill emphasizes "safety" standards, but never explicitly states whether these "safety" standards include construction standards. The bill definitely should be strengthened to include construction standards".

And,

Mr. Fosdick (Lt. Governor Schreiber’s Executive Secretary) stated:

"When a family is driven from their home as a result of defects in the structure, it is a serious matter. If the federal government is willing to establish a regulatory system to insure the safety of mobile homes, it is only a small step to also insure that the home will be reliable and reasonably free of defects".

The above statements are the only explanation for the changes cited above, on the public record. From this, it is a reasonable conclusion that lawmaker’s reasons for the changes, were for the reasons provided by Lynda McDonnell, Dr. Drury (Urban Institute) and Mr. Fosdick.

The ‘Mobile Home Act’ provided four basic elements intended by Congress to assure that each purchaser’s right to safe, durable, and quality housing would be assured and these are:

1. Notification to a purchaser, by the manufacturer of any defect in any 'mobile home', and in the case where the defect(s) was of the manufacturer and/or their agent(s) making, repair of such 'mobile home' at the manufacturer's expense. The manufacturer, as the principal, had 60 days to decide who would do what, and have the repairs completed [42 USC 5414(a)(e)(g)(h)(i)];
2. Prohibition against manufacturing for sale, offering for sale, selling or leasing, any new ‘mobile home’ known in the exercise of due care, not to comply with all applicable ‘federal standards’, and the Act provides penalties for intentionally not complying or failing to exercise due care [42 USC 5409(a)(1) and (b)(2)].
3. Inspections by government employees, or by services directly contracted for by the administering agency (HUD), to determine if each mobile home produced complies with all applicable ‘federal standards’ [42 USC 5413(b)(1) and (2)]; and
4. The rights afforded ‘mobile home’ purchasers under Title 42 USC, Chapter 70 may not be waived, and any provision of a contract or agreement entered into after August 22, 1974, to the contrary shall be void [42 USC 5421].

Congress provided the ‘Secretary’, within the provision of their Act, all of the tools that the ‘Secretary’ would need, and mandated he use those tools to assure the final-product (mobile home) when delivered to the purchaser, would in fact comply with all applicable ‘federal standards’. Of equal importance was that Congress was assuring the American people that mobile homes delivered into commerce, would not pose an unreasonable risk of injury to persons, and to property, of those who were given no choice in another’s decision to buy and live in a mobile home.

If the primary system for protection failed, which is prevention, the Act provides a remedial system that would afford each purchaser his or her right to timely and equitable relief, from the manufacturer. For this reason, lawmakers did not provide within this legislation, for the purchaser’s right to sue a manufacture for delivering to them a new mobile home that did not comply with all applicable ‘federal standards’. Simply stated, it’s against federal law for the manufacturer to sale or sell to any purchaser, any manufactured home that does not comply with all applicable MHCSS, at the completion of the sale to the purchaser. When such sale includes the delivery and onsite completion of the home, then such cannot be concluded until such has occurred. The rights afforded to a purchaser under this chapter may not be waived and any provision of a contract to the contrary is void [42 USC §5422]. Why would the purchaser need to sue when a legal sales transaction has never occurred from which a dispute can arise?

The ‘Secretary’ cites within his regulations that his regulations represent the exclusive system for the enforcement of the ‘federal standards’ [24 CFR 3282.11(c)]. This implies that the Secretary’s regulations have preemption over State and local law even though the Secretary’s regulations have no legitimate objective towards affording the purchaser their primary and, if needed, their remedial right under this chapter.

To provide preemption to his regulations, for which preemption was not provided by Congress, the Secretary had to take what is at best, an artful approach. He did this by establishing a standard [24 CFR 3280.3], which made his regulations at 24 CFR part 3283, a MHCSS. The problem with his artful approach is that the standard he established for this purpose is not a standard within the meaning of the MHCSS Act nor is it a standard within the meaning of a MHCSS, as interpreted by the Federal Courts. While the industry drafted 2000 amendment to the MHCSS Act attempted to confuse or obscure the nature of the Secretary’s standard at 3208.3, it nonetheless is unconstitutional, since it is a Federal usurpation of powers reserved to the State by the Constitution of the United States.

Properly informed consumer representatives on the newly formed Consensus Committee could prevent the undoing of the original Congressional intent. However, it is extremely doubtful if HUD will appoint any consumer representatives, who have not shown an eagerness or propensity to go along with the industry’s objectives or goals, or that have the ability to understand the unconstitutional nature of HUD’s manufactured housing program.

Given this, the only solution will likely have to come from the Courts, but given the complexity of this fraud, and the amount of time it has run unabated, it will be difficult legal battle, but it is not un-winnable.