Mobile and Modular Homes Manuscript Mid-Winter Municipal Attorney's Conference School of Government Chapel Hill, NC
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Manufactured Home Miscellaneous Issues
An opinion issued by the Court of Appeals in August 2006 may have rendered obsolete a significant part of my understanding, and that of many other municipal attorneys, of the law applicable to mobile and modular homes in North Carolina. The case was S. Wilson Taylor v. Town of River Bend. The case involved the ultimately successful prohibition of installation of a modular home in a residential subdivision.
After being a fairly low-key issue for municipalities for the last few years, this opinion brought zoning of manufactured and modular housing back into attention. This recent opinion creates, in my opinion, a realistic opportunity for a municipality to enact an ordinance banning certain modular homes which formerly evaded regulation. That was a somewhat surprising new development to many municipal attorneys who have thought that modular housing was protected by the Fourteenth Amendment and Article 1, Section 19 of the North Carolina Constitution, by virtue of being more comparable to stick-built homes than to manufactured housing. Many municipal attorneys, including this one, doubted that a modular home could be prohibited through a zoning ordinance prior to the River Bend opinion. This manuscript will examine the historical and current state of the law on “manufactured housing,” earlier known as “house
trailers” and later as “mobile homes,” and “modular homes.” It will then examine the River Bend decision and explore a possible ordinance adoption opportunity. It will focus on the following questions:
1. WHAT IS A MOBILE OR MANUFACTURED HOME?
2. HOW ARE MOBILE AND MANUFACTURED HOMES ZONED?
3. WHAT IS A MODULAR HOME?
4. WHAT IS THE DIFFERENCE BETWEEN A MOBILE HOME AND A
5. DOES THE DIFFERENCE REALLY MAKE ANY DIFFERENCE ANY
6. WHAT CAN YOUR MUNICIPALITY DO ABOUT IT?
To review these issues will require a look at some manufacturing processes, some installation techniques, a number of definitions created by case law, statutes and ordinances. Along the way, we will look into some other issues as well, as follows:
- Can a mobile or manufactured home purchased with a vehicle title and license be transformed from personal property into real property?
- If one buys a lot with a mobile home on it, thinking of it as real estate, and somebody else shows up with a title to it as a vehicle, whose claim prevails?
- If a mortgage company takes a deed of trust on that lot and mobile home, and it is subsequently revealed that an acceptance corporation has a UCC filing on it, which lien prevails?
- If you buy a mobile home on the lot, do you have to re-register it with DMV as vehicle?
- Can a municipality demolish a mobile home in violation of minimum housing laws and/or as an unsafe dwelling?
- Does the 6-year improvement to real property statute of limitations govern a lawsuit over a mobile home, or a shorter statute of limitations (under the UCC, the contract can stipulate a much shorter S/L, as little as one year)?
- Is breaking into a mobile home a felony? Can it be burglary?
- Is burning a mobile home arson? Is it in the first degree?
- Is breaking the windows out of a mobile home damage to real property?
1. What is a Mobile or Manufactured Home?
First, some terminology: the terms “house trailer,” “mobile home” and “manufactured home” are essentially synonymous. They are a form of housing constructed on a metal frame (or if it is a double-wide, on two frames) in an assembly-line manufacturing process, to national standards promulgated by HUD. “House trailer” and “mobile home” have been defined by case law; “manufactured home” is defined by statute. “Manufactured home” is not defined in Chapter 160A; rather, NCGS §160A-381.1(b) refers to NCGS §143-145(7) for the following definition:
(7) Manufactured Home. A structure, transportable in one or more sections, which in the traveling mode is eight body feet or more in width, or 40 body square feet; and which is built on a permanent chassis and designed to be used as a dwelling, with or without permanent foundation when connected to the required utilities, including the plumbing, heating, air conditioning and electrical systems contained therein. “Manufactured home” includes any structure that meets all of the requirements of this subsection except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the Secretary of HUD and complies with the standards established under the Act.
A manufactured home is inspected at the plant by a “third-party inspector” licensed by the N. C. Department of Insurance, following which an inspection label is affixed. It has a certificate of title, is licensed as a motor vehicle, is equipped with wheels, is towed to the sales lot, and then towed to the housing site. It is then typically set on piers which are constructed by simply “dry-stacking” (e.g. without mortar) cinder blocks. The piers are converted into something akin to stable structures by simply grouting around the exterior with a cement product such as “Surewall.” A manufactured home is typically secured to the ground by means of straps attached to augurs screwed into the ground. The tongue and wheels are removed. Electrical and plumbing connections are made, and it is ready for the residents to move in. It typically continues to be transferred and taxed for ad valorem purposes as personal property. Circumstances in which it can be reclassified and reconveyed as real property are discussed hereinafter.
Zoning of Manufactured Homes
The statutory substantive law relating to zoning of manufactured housing is contained in NCGS §160A-383.1, “Zoning Regulations for Manufactured Homes,” adopted in 1987 as a result of a lobbying effort by the manufactured home industry. Prior to 1987, there were zoning ordinances in effect in this State which at that time either prohibited mobile homes completely or restricted them to mobile home parks. The 1923 zoning enabling authority implicitly included the power to zone them.
Prior to the 1923 enabling statute granting municipalities the power to zone, and continuing thereafter, municipalities had used the “nuisance” concept to prohibit construction of various unpopular uses within their jurisdictions. Prohibited uses included such potentially harmful instrumentalities as a milldam, a sewage disposal plant or a hospital to treat tuberculosis. Similarly, prior to zoning per se, municipalities used their general police power to limit locations of uses such as gas stations in terms of distances from other usesor prohibited them entirely in a described part of town.
The power to declare and regulate nuisances springs, of course, from the “general police power” granted in NCGS §160A-174(a) as follows:
A city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.
In State v. Martin, the Court of Appeals reviewed the conviction of a man tried in a criminal prosecution for violating a mobile home zoning ordinance in Ahoskie, N.C. The defendant contended that the statute was unconstitutional, primarily on grounds related to the building inspector’s assertedly arbitrary power. That opinion contains no analysis of the broader issue of whether the municipality could lawfully zone mobile homes. The legality of the zoning ordinance appears to have been assumed in that opinion.
One municipal ordinance which generally prohibited “trailers” within the corporate limits was struck down by our Supreme Court in 1970, in the case of Town of Conover v. Jolly. This case is an example of a prohibition enacted under the general police power to prohibit or abate nuisances, and not specifically as zoning. The Court held that a “trailer” home was not a nuisance. In Conover (in an opinion by Justice Lake) the Court quoted a dissent from a New Jersey case which said that “Trailer living is a perfectly respectable, healthy and useful kind of housing, adopted by choice by several million people in this country today....” The opinion noted that the General Assembly had just adopted standards for their construction. It analyzed the nuisance statutes and concluded that a mobile home was not a nuisance. There was no discussion of whether the ordinance was valid under the municipal grant of zoning power, since the Conover ordinance had not been labeled a zoning ordinance. Regulating mobile home zoning is within the general zoning authority granted in NCGS §160A-381 relating to (“...the location and use of buildings, structures and land....”) Subsequent cases have so held. The Conover case appears to be applicable only if nuisance law is used to prohibit such homes.
In City of Asheboro v. John R. Auman and Nora Auman, a zoning ordinance prohibited mobile homes in certain areas. The defendants installed a mobile home on their lot, subsequently removed the wheels and tongue, and erected a foundation. The City of Asheboro obtained an injunction. The Court of Appeals upheld the granting of the injunction. The Court of Appeals summarily rejected constitutional challenges to the ordinance, without discussion. It was argued on behalf of the owners by removing the tongue and wheels had so changed the nature of the structure that it was no longer a mobile home. The Court of Appeals stated simply: “We hold, as a matter of law, that the stipulated changes in the mobile home did not change the nature of the offending nuisance property.” (That would have been use of the word “nuisance” in less than the full legal sense of the term.)
A legal attack was made in 1980 on the validity of a Currituck County ordinance, which banned single-wides and homes smaller than 24 feet by 60 feet. In Currituck County v. Wiley, the mobile home owner asserted protection under the Fourteenth Amendment and Article 1, §19 of the North Carolina Constitution.
The Fourteenth Amendment to the United States Constitution states in part:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Article 1 §19 of the North Carolina Constitution states the following:
No person shall be...deprived of his life, liberty, or property, but by the
law of the land. No person shall be denied the equal protection of the laws....
Both use the phrase “life, liberty, or property.” That phrase comes directly from the writings of John Locke. Locke defined governmental power as the right to make laws for the regulating and preserving of property and of employing the force of the community for the execution of such laws... “and all this only for the public good.” He set forth the rational basis for a modern view of government, and specifically the general police power to enact reasonable rules for the “common good.” The hallmark of freedom under such a government would be to be free of the arbitrary exercise of power:
The freedom of men under government is to have a standing rule to live by...
a liberty to follow my own will in all things where that rule prescribes not,
not to be subject to the inconstant, uncertain, unknown arbitrary will of
Look again at other language from the two constitutional clauses cited above: “due process of law,” and “the law of the land.” They express the Lockean philosophy that if government behaves in accordance with the rules, it can preserve one person’s property rights, even at the cost of another’s, so long as the action is solely for the public good. The opinion of Justice Sharpe in the well-known In Re Application of Ellis expressed, in pure Lockean terms, the need to protect the enjoyment of one’s property from the unbridled will of the governing authorities, as follows:
It is equally clear that if an ordinance is passed by a municipal corporation which, upon its face, restricts the right of dominion which the individual might otherwise exercise without question, not according to any general or uniform rule, but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the governing authorities of the town or city, it is unconstitutional and void, because it fails to furnish a uniform rule of action and leaves the right of property subject to the despotic will of aldermen who may exercise it.
In the Currituck County case, the Court set the constitutional bar high for the owner, saying
that “...the defendant...must carry the burden of showing that [the ordinance] does not rest on any reasonable basis, but is essentially arbitrary.” The Court held that “...mobile homes are apparently different from other types of housing so that there is a rational basis for placing different requirements on them....” The Court did not explain the difference in detail, and particularly did not articulate the rational basis for excluding those under a certain size. The opinion distinguished Conover and relied on Auman.
The next North Carolina appellate case relating to zoning manufactured homes was Duggins v. Walnut Cove.The Town prohibited “mobile homes,” on R20 residential lots, while permitting site-built homes and modular homes. The question of how to define a “mobile home” became of paramount importance to that lawsuit. The plaintiffs also contended that the enforcement of the ordinance was not within the proper scope of the police power of that municipality. Constitutional issues were again raised based on the Fourteenth Amendment to the United States Constitution, and Article I, Section 19 of the Constitution of North Carolina.
The Court of Appeals noted that mobile homes and modular homes are constructed in accordance with different building codes, but stated without further elaboration: “It is obvious from the definitions in the ordinance that the different applicable building codes is not the only factor differentiating mobile homes from modular homes.” Those differences were not spelled out by the Court. The Walnut Cove ordinance defined a mobile home as “...a dwelling unit complete with necessary service connections and ready for occupancy, except for minor and incidental unpacking and assembly operations, including, but not limited to, location on jacks or other temporary or permanent foundation....” The differences the Court was referring to presumably included the different foundation construction methods, as at least one of the other factors differentiating the two types of housing. As to the validity of the ordinance, the Court held as follows:
The protection of property values in the zoned area is a legitimate governmental objective.
The method of construction of homes may be determined by a city governing board as affecting the price of homes. The prohibition of such buildings is rationally related to the protection of the value of other homes in the area, and a court cannot interfere with that legislative decision.
The Manufactured Homes Trade Association participated in the Walnut Cove case as amicus curia. After the industry lost that round in the courts, it went to the General Assembly. The statutory law specifically relating to zoning manufactured housing, contained in NCGS §160A-383.1, “Zoning Regulations for Manufactured Homes,” was adopted in 1987 as a result of a concerted lobbying effort by the manufactured home industry. Good lobbying work resulted in a powerhouse preamble to new legislation in which the General Assembly found “...that manufactured housing offers affordable housing opportunities for low and moderate income residents of this State, who cannot otherwise afford to own their own home,” and that “...some local governments have adopted zoning regulations which severely restrict the placement of manufactured homes.” The General Assembly suggested that “...cities re-examine their land use practices...and consider allocating more residential land area for manufactured homes....” However, from the industry’s viewpoint, the preamble was probably the high water mark of the legislation. The only prohibition against regulation which the industry received from this statute was as follows:
A city may not adopt or enforce zoning regulations or other provisions which have the effect of excluding manufactured homes from the entire zoning jurisdiction.
Also see NCGS §143-143.8 through 143-151.5 for creation of the North Carolina Manufactured Housing Board, delegation of certain duties to the Commissioner of Insurance, standards for sellers of manufactured homes, including criminal checks, required warranties, procedures for presenting claims for breach of warranties, cancellation of purchase, licensing of sellers, regulation of escrow accounts, and establishing uniform construction standards for manufactured homes. The construction standards largely defer to the HUD standards.
Local governments may have obtained more out of the passage of the bill 1987 than the manufactured housing industry, as subsection (d) states that “A city may adopt and enforce appearance and dimensional criteria for manufactured homes.” Note that subsection (d) of the statute restates the constitutional limits of the general police power, as follows:
Such criteria shall be designed to protect property values, to preserve the character and integrity of the community or individual neighborhoods within the community, and to promote the health, safety and welfare of area residents.
The principal reported case on the impact of the 1987 manufactured homes statute on local governments arose out of two re-zoning requests of manufactured home parks denied by the City of Burlington in 1997. The developers contended that NCGS §160A-383.1 “...reveals a legislative intent that there be ‘a substantial presence of manufactured homes’ within each municipality.” The Court of Appeals disagreed, noting that the legislature’s only mandate was that municipalities “consider allocating more residential land area for manufactured homes.”
The only effect of the 1987 statute on local governments was that they could not exclude manufactured homes from their jurisdictions completely. The effect on the industry, however, was the specific legislative grant of power to local governments in section (d) to establish a whole new level of regulation of the appearance and dimensions of manufactured homes.
A Catawba County ordinance adopted pursuant to section (d) of the 1987 statute requiring siding and shingles similar to standard residential construction was challenged in the U.S. District Court for the Middle District in 1998. A challenge was based on a preemption argument, e.g. that manufactured homes are built pursuant to standards promulgated by HUD, thus preempting the creating of additional standards. The Middle District Court held that the Catawba County Ordinance “...was enacted to remove from the range of safe and satisfactorily performing materials only ones based on undesirable appearance,” did not therefore preempt the regulation of safety and performance of roofing and siding materials, and thus did not interfere with the Federal regulation of safety and performance of roofing and siding materials.
There was a series of appellate cases over the approximately 20-year period through 2006 dealing with whether a specific structure fit the definitions of trailer, mobile home or manufactured home. Whether a particular structure in the lawsuit was a “trailer,” or “mobile home,” or “manufactured home” was often critical to determining whether it violated a restrictive covenant.
In Starr v. Thompson, a structure was found to be a mobile home because it consisted of two sections, each with a permanent built-in chassis equipped to accommodate four removable axles, and the structure was delivered to its location on wheels attached to the axles. The structure remained a mobile home “even though the axles, wheels and tongues are removed after the structure was placed on the lot.”
In City of Asheboro v. Auman, a change in the home to create a lack of mobility of the structure after it is installed was held not to change the fact that it is still a mobile home. In Young v. Lomax, the Court held “as a matter of law” that:
the structure is a mobile home when...the structure was delivered to the site in two sections; each section had its own permanent steel chassis consisting of two “I” beams affixed to the flooring system of the unit; each unit was attached to four axles with two wheels per axle; and a truck towed the structure to its present site with the structure riding on its own axles and wheels.
In Angel v. Truitt, the Court held simply that a “mobile home” is a structure that is designed to be moved for transport.
In Briggs v. Rankin, the Court of Appeals made it clear that the existence of a chassis or frame in and of itself (e.g., the ability to be transported) was not determinative. The Court announced five tests for determining whether a particular transportable home was a manufactured home, as follows:
(1) whether the structure must comply with the N.C. Regulations for
Manufactured/Mobile Homes, which are consistent with HUD national
regulations, or with the N.C. State Building Code;
(2) whether the structure is attached to a permanent foundation;
(3) whether, after constructed, the structure can easily be moved or has to be
moved like a site-built home;
(4) whether title to the home is registered with the N.C. Department of Motor
Vehicles or must be conveyed by a real property deed; and
(5) how the structure is delivered to the homesite.
In an unpublished opinion issued in early 1999, in Wilson v. Abbott, the Court of Appeals reversed summary judgment in favor of the homeowners. (This unpublished case is not readily available for consideration. Lexis had not yet begun archiving unpublished cases then. Presumably, a copy can be obtained from the Court.) The effect of the case was to follow Briggs in requiring that a factual determination be fully carried out each time the issue is presented. A 1999 article in Lawyers Weekly stated that the Wilson v. Abbott opinion was a subject of some intense discussion at the 1999 North Carolina Real Property Lawyers Conference, as real property attorneys were concerned that their title examination duties were thereby made much more complex.
For most of the past decade through August 2006, the difference between a manufactured home and a modular home seemed to be self-evident: one has a HUD sticker, the other has a “N.C. On-Frame” sticker; one is installed by the dealer; the other is built on a foundation by a licensed general contractor; the construction of one is not inspected by building inspectors; the other is; one is typically set on dry-stacked blocks; the other is built on a perimeter foundation.