BRIARCREST — In the latest round of the tussle over the future of Briarcrest Estates, its owners have asked the Belknap County Superior Court to clarify the state statute bearing on the sale of manufactured housing parks.
Attorney Paul Fitzgerald, representing the owners, Mark and Ruth Mooney of Belmont, claims that the ambiguity of the law imposes contradictory duties on his clients, putting them at risk of significant financial penalties.
In July, the Mooneys accepted an offer from Hometown America Corporation of Chicago to purchase the park for $10 million. In accord with a state law entitling park tenants to make a counteroffer and requiring park owners to bargain in good faith, a group of residents, with encouragement and assistance from ROC-NH, a program of the New Hampshire Community Loan Fund, incorporated as the Lakemont Cooperative and matched the $10 million offer.
In response, the Mooneys asked the Belknap County Superior Court to approve the sale of the park to Hometown America. Attorney John Giere, representing the Mooneys, claimed that approving the transaction would be in keeping with the statute, which is is intended to safeguard the best interests of tenants, most of whom oppose cooperative ownership of the park. Last week a majority of tenants filed a petition with the court opposing the sale of the park to the cooperative.
The Lakemont Cooperative, represented by Attorney Robert Shepherd of Nashua, asked the court to dismiss the Mooneys' petition. Shepherd told the court that as the owners of the park the Mooneys were in no position to represent the interests of its residents. Shepherd reminded the court that the statute does not prescribe that the cooperative include a specific number or percentage of tenants to make an offer and pursue the transaction.
In objecting to the cooperative's petition to dismiss, Fitzgerald cites the statute, which requires that upon receiving an offer to purchase, park owners must "consider any offer received from the tenants or a tenants' association, if any, and the owner shall negotiate in good faith with the tenants concerning a potential purchase." Failure to comply carries a liability to the tenants of $10,000 or 10 percent of the purchase price, whichever is greater.
Fitzgerald argues that the term "tenants" and "tenants association," which are nowhere defined, are ambiguous, but can only reasonably taken to refer to a majority of the tenants. Consequently, he concludes that the Mooneys "owe(s) conflicting duties of good faith" to both the cooperative and the majority and could face a liability of $1 million to either. Contrary to Shepherd's suggestion that the Mooneys have no grounds for petitioning the court, Fitzgerald insists that the liability affords them standing. He cited a judge, who in another case, remarked that "The law does not always say to the prospective victim that the only way to determine whether the suspect is a mushroom or a toadstool is to eat it."
Fitzgerald asked the court to resolve the ambiguity of the statute and in the meantime to deny the cooperative's motion to dismiss the case along with its requests to order that the law is not ambiguous and the cooperative does not require a majority. And finally to refrain from ordering the Mooneys to negotiate with the cooperative until the case resolved.