Because they are densely located, mobile homes pose particular environmental hazards not shared by other kinds of residential communities. For example, a mobile home park served by septic systems, will likely have a greater concentration of septic systems than found in other kinds of communities.

Therefore, it represents a greater risk that a septic failure will result in contamination. The same applies to potable wells and heating oil tanks -- a higher concentration of units means a higher concentration of tanks and/or wells, and an increased chance of environmental degradation.

When leaks, or tank failures or well water problems occur, it is often the mobile home park owner that is called upon to find a solution. Solutions can be costly. So, it is not surprising that park owners look for affordable ways to limit their exposure relating to these kinds of environmental problems.

A recent New Jersey Appeals Court decision found that park owners cannot minimize their exposure by simply issuing orders to park tenants requiring them to make costly tank replacements, at the tenant's own expense. While this is a New Jersey Court decision, it may also be considered by Courts in other jurisdictions asked to consider these kinds of issues.

In Garden Park Mobile Home Owners Association v. Garden Park Associates, Appellate Division docket number A -6738-95T1, the Court found that a park owners' requirement that all tenants switch from oil heat to natural gas, at the tenant's expense, was unreasonable as a matter of law.

In January of 1992, Garden Park Associates, the park owner, established a new rule requiring all of its tenants to convert their existing oil heat systems to natural gas within six months. This resulted in the Plaintiffs retaining an attorney who in turn sent a letter to Garden Park Associates asserting that the restriction was unreasonable and should be rescinded.

Apparently, this had some impact because in November 1992, Garden Park modified the mandate and this time required its tenants to remove existing oil tanks and convert to natural gas following a sale of a mobile home.

One of the Plaintiffs was required to spend over one thousand dollars to convert to natural gas and to have his above ground oil storage tank removed before he could sell his mobile home to another tenant.

The Plaintiffs filed a lawsuit seeking to prevent the park owner from enforcing the new requirement and demanding money damages and attorneys fees. They prevailed on all counts at the trial level. The Appeals Court affirmed the trial Court's decision.

The trial Court determined that three expert reports submitted on behalf of Garden Park Associates did not support its position that the tanks were potentially hazardous, thereby warranting immediate removal and conversion. Instead, the trial judge found that the reports did not make any definitive finding and only suggested that the removal of the tanks and conversion to gas would be a sound option. In addition, the trial Court found that Garden Park Associates failed to establish that the oil tanks were an unsafe structure within the meaning of the New Jersey Uniform Construction Code.

Finally, the trial Court found that the removal and conversion requirement violated the Hazlet municipal rent leveling ordinance, which in pertinent part provides:

"No land lord shall demand or receive, directly or indirectly, any premium or anything of value other than the rent fixed by this article as a condition to the rental of any mobile home or mobile home space."

Mobile home park operators and owners risk substantial liability relating to oil tank leaks, as well as potable water contamination and septic tank failures. Tank leaks can be costly to remediate, and are frequently not covered by insurance. It is therefore understandable why the owner of a mobile home park might wish to limit its exposure by requiring that these tanks be removed.

This New Jersey Appeals Court decision does not suggest that the desire to minimize liability is wrong. But it does stand for the proposition that, at least in New Jersey, this cannot be accomplished on a wholesale basis, at the cost of the tenants. Absent good evidence of danger or hazard, an owner cannot compel the wholesale removal of these tanks.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.