IN THE COURT OF APPEALS OF TENNESSEE FILED AT KNOXVILLE April 15, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk JOHN PAUL NEAS, III, and Wife, ) C/A NO. 03A01-9812-CH-00386 PATRICIA NEAS, et al., ) ) Plaintiffs-Appellees, ) ) ) APPEAL AS OF RIGHT FROM THE v. ) WASHINGTON COUNTY CHANCERY ) COURT ) ) ) HELEN JANE KERNS, ) ) HONORABLE THOMAS J. SEELEY, JR., Defendant-Appellant. ) JUDGE, By Interchange
For Appellant For Appellee
THOMAS C. JESSEE JOHN RAMBO Jessee & Jessee Herrin, Booze & Rambo Johnson City, Tennessee Johnson City, Tennessee
O P I N IO N
1 AFFIRMED AND REMANDED Susano, J.
2 John Paul Neas, III, his wife, Patricia Neas, and other
residents of Town and Country Estates in Washington County sued
Helen Jane Kerns (“Kerns”), seeking to enforce restrictions
prohibiting the use of a mobile home or trailer as a residence in
the subdivision. Following a bench trial, the lower court held
that Kerns’ “proposed [placement] of a manufactured home on her
lot would violate the protective covenants and restrictions for
Town and Country Estates”; it therefore enjoined Kerns from
taking such action. Kerns appeals, arguing that the trial court
erred in interpreting the applicable restrictions and in finding
that the subject structure was a “mobile home.”
Kerns is the owner of a lot in Town and Country
Estates. Upon its establishment, the subdivision was made
subject to various restrictions, including the following:
No mobile home or trailer shall be used as living quarters on any lots or tracts of said property.
This litigation ensued after Kerns informed some of her neighbors
of her intention to place a manufactured home on Lot 16A of the
subdivision. At trial, Kerns contended that the proposed home
was not a “mobile home or trailer,” as evidenced by the
following: the home would be of high-quality construction; it
would be placed on a permanent foundation; it would be financed
for 30 years; it would exceed the subdivision’s minimum square
footage requirements; and once placed on the lot and financed, it
3 would lose its vehicle identification number.1 The trial court
made the following findings with respect to the home:
[Kerns] intends to place a double-wide “manufactured home” on her lot. Such double- wide home is constructed off-site. It is transported by road to its intended lot in two sections. The two sections are flagged “wide load” and get a required “over-width” and “over-height” permit from the Tennessee Department of Transportation. The two sections each have a VIN number or serial number. The sections contain a hitch and wheels so that each section can be towed to its place of installation. Occasionally, but infrequently, the units are placed on a low- boy for transport and are placed [at] the site by use of a crane. The manufactured home can generally be relocated in one day due to its increased movability.
The owners of such manufactured home can receive conventional financing from FHA, VA and other lending institutions just as [the owners of] a normal on-site constructed home can.
It is [Kerns’] intention to place the manufactured home on a concrete foundation and possibly attach a garage to it.
Relying on the case of Beacon Hills Homeowners Ass’n, Inc. v.
Palmer Properties, Inc., 911 S.W.2d 736 (Tenn.App. 1995), the
trial court held that Kerns’ proposed home fell within the
definition of “mobile home or trailer,” as those terms are used
in the applicable subdivision restrictions.
1 Kerns also took the position at trial that the plaintiffs were estopped from enforcing the subject restriction because the subdivision owners had failed to object to previous violations of other restrictions. The trial court rejected this argument, however, and Kerns does not pursue it on appeal. According to her brief, Kerns also contended at trial that 12 U.S.C. § 1715z preempts state law and local zoning ordinances so as to allow homes such as the one at issue in this case to be constructed where single-family homes are allowed; thus, Kerns urges us to adopt, as a matter of public policy, a rule that manufactured homes such as hers are not “mobile homes.” However, she supports this position with no authority; furthermore, even if 12 U.S.C. § 1715z has the purpose that Kerns suggests, this does not mean that it has the effect of preempting private subdivision restrictions. We find this argument to be without merit.
4 Our review of this non-jury case is de novo upon the
record with a presumption of correctness as to the trial court’s
findings of fact, unless “the preponderance of the evidence is
otherwise.” Rule 13(d), T.R.A.P.; Wright v. City of Knoxville,
898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s
conclusions of law are not accorded the same deference. Campbell
v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley
v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
Generally speaking, restrictions on the free use of
real property are not favored and will be strictly construed.
Hicks v. Cox, 978 S.W.2d 544, 548 (Tenn.App. 1998); Beacon Hills,
911 S.W.2d at 739. However, the overriding consideration is the
intent of the parties. Hicks, 978 S.W.2d at 548; Beacon Hills,
911 S.W.2d at 739.
In Beacon Hills, we addressed a situation similar to
that in the instant case. The subject restriction in Beacon
Hills prohibited, among other things, the use of any “structure
of a temporary character [or] trailer” as a residence. We
described the manufactured home in question as follows:
The structure here consisted of two units. Each unit was pulled by a tractor-truck over the public highways to defendants’ lot in Beacon Hills Subdivision. Concrete footers were poured or proposed to be poured at the site for the foundation. The two units were to be attached together and secured to the foundation. The assembled structure was constructed on four I-beams running the length of the units. The space between the
5 foundation or footing and the structure was to be enclosed. The only difference between the case under consideration and Albert [v. Orwige, 731 S.W.2d 63 (Tenn.App. 1987)] is that, here, the appellant proposed to add a garage, porch and use brick on a large portion of the exterior of the structure.
Following installation, the wheels, axles and tongues were to be removed from each of the units. As in Albert, the wheels, axles and tongues could be reattached to the units, which could then be separated and towed away from defendants’ lot in the same manner as they had been brought to defendants’ property. A certificate of origin for a vehicle was issued by the manufacturer and a vehicle identification number was assigned to it.
Id. at 738.
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IN THE COURT OF APPEALS OF TENNESSEE FILED AT KNOXVILLE April 15, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk JOHN PAUL NEAS, III, and Wife, ) C/A NO. 03A01-9812-CH-00386 PATRICIA NEAS, et al., ) ) Plaintiffs-Appellees, ) ) ) APPEAL AS OF RIGHT FROM THE v. ) WASHINGTON COUNTY CHANCERY ) COURT ) ) ) HELEN JANE KERNS, ) ) HONORABLE THOMAS J. SEELEY, JR., Defendant-Appellant. ) JUDGE, By Interchange
For Appellant For Appellee
THOMAS C. JESSEE JOHN RAMBO Jessee & Jessee Herrin, Booze & Rambo Johnson City, Tennessee Johnson City, Tennessee
O P I N IO N
1 AFFIRMED AND REMANDED Susano, J.
2 John Paul Neas, III, his wife, Patricia Neas, and other
residents of Town and Country Estates in Washington County sued
Helen Jane Kerns (“Kerns”), seeking to enforce restrictions
prohibiting the use of a mobile home or trailer as a residence in
the subdivision. Following a bench trial, the lower court held
that Kerns’ “proposed [placement] of a manufactured home on her
lot would violate the protective covenants and restrictions for
Town and Country Estates”; it therefore enjoined Kerns from
taking such action. Kerns appeals, arguing that the trial court
erred in interpreting the applicable restrictions and in finding
that the subject structure was a “mobile home.”
Kerns is the owner of a lot in Town and Country
Estates. Upon its establishment, the subdivision was made
subject to various restrictions, including the following:
No mobile home or trailer shall be used as living quarters on any lots or tracts of said property.
This litigation ensued after Kerns informed some of her neighbors
of her intention to place a manufactured home on Lot 16A of the
subdivision. At trial, Kerns contended that the proposed home
was not a “mobile home or trailer,” as evidenced by the
following: the home would be of high-quality construction; it
would be placed on a permanent foundation; it would be financed
for 30 years; it would exceed the subdivision’s minimum square
footage requirements; and once placed on the lot and financed, it
3 would lose its vehicle identification number.1 The trial court
made the following findings with respect to the home:
[Kerns] intends to place a double-wide “manufactured home” on her lot. Such double- wide home is constructed off-site. It is transported by road to its intended lot in two sections. The two sections are flagged “wide load” and get a required “over-width” and “over-height” permit from the Tennessee Department of Transportation. The two sections each have a VIN number or serial number. The sections contain a hitch and wheels so that each section can be towed to its place of installation. Occasionally, but infrequently, the units are placed on a low- boy for transport and are placed [at] the site by use of a crane. The manufactured home can generally be relocated in one day due to its increased movability.
The owners of such manufactured home can receive conventional financing from FHA, VA and other lending institutions just as [the owners of] a normal on-site constructed home can.
It is [Kerns’] intention to place the manufactured home on a concrete foundation and possibly attach a garage to it.
Relying on the case of Beacon Hills Homeowners Ass’n, Inc. v.
Palmer Properties, Inc., 911 S.W.2d 736 (Tenn.App. 1995), the
trial court held that Kerns’ proposed home fell within the
definition of “mobile home or trailer,” as those terms are used
in the applicable subdivision restrictions.
1 Kerns also took the position at trial that the plaintiffs were estopped from enforcing the subject restriction because the subdivision owners had failed to object to previous violations of other restrictions. The trial court rejected this argument, however, and Kerns does not pursue it on appeal. According to her brief, Kerns also contended at trial that 12 U.S.C. § 1715z preempts state law and local zoning ordinances so as to allow homes such as the one at issue in this case to be constructed where single-family homes are allowed; thus, Kerns urges us to adopt, as a matter of public policy, a rule that manufactured homes such as hers are not “mobile homes.” However, she supports this position with no authority; furthermore, even if 12 U.S.C. § 1715z has the purpose that Kerns suggests, this does not mean that it has the effect of preempting private subdivision restrictions. We find this argument to be without merit.
4 Our review of this non-jury case is de novo upon the
record with a presumption of correctness as to the trial court’s
findings of fact, unless “the preponderance of the evidence is
otherwise.” Rule 13(d), T.R.A.P.; Wright v. City of Knoxville,
898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s
conclusions of law are not accorded the same deference. Campbell
v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley
v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
Generally speaking, restrictions on the free use of
real property are not favored and will be strictly construed.
Hicks v. Cox, 978 S.W.2d 544, 548 (Tenn.App. 1998); Beacon Hills,
911 S.W.2d at 739. However, the overriding consideration is the
intent of the parties. Hicks, 978 S.W.2d at 548; Beacon Hills,
911 S.W.2d at 739.
In Beacon Hills, we addressed a situation similar to
that in the instant case. The subject restriction in Beacon
Hills prohibited, among other things, the use of any “structure
of a temporary character [or] trailer” as a residence. We
described the manufactured home in question as follows:
The structure here consisted of two units. Each unit was pulled by a tractor-truck over the public highways to defendants’ lot in Beacon Hills Subdivision. Concrete footers were poured or proposed to be poured at the site for the foundation. The two units were to be attached together and secured to the foundation. The assembled structure was constructed on four I-beams running the length of the units. The space between the
5 foundation or footing and the structure was to be enclosed. The only difference between the case under consideration and Albert [v. Orwige, 731 S.W.2d 63 (Tenn.App. 1987)] is that, here, the appellant proposed to add a garage, porch and use brick on a large portion of the exterior of the structure.
Following installation, the wheels, axles and tongues were to be removed from each of the units. As in Albert, the wheels, axles and tongues could be reattached to the units, which could then be separated and towed away from defendants’ lot in the same manner as they had been brought to defendants’ property. A certificate of origin for a vehicle was issued by the manufacturer and a vehicle identification number was assigned to it.
Id. at 738. After considering the statutory definitions of a
“manufactured home”2 and a “mobile home or house trailer,”3 we
found that the structure in question fell within both
definitions. Id. at 737. We then held as follows:
The court [in Albert v. Orwige] noted that the manner of construction between a “modular home” and a “mobile home” was a difference without a distinction. We agree that the same reasoning can be applied to a “manufactured home” and a “mobile home.”
Id. at 738. We also found that the terms “mobile home” and
“trailer” had been used interchangeably during the relevant time
period.4 Id. at 739. Thus, we held that the trial court had
2 See T.C.A. § 68-126-202(4).
3 See T.C.A. § 55-1-105(1) (“‘Mobile home or house trailer’ means any vehicle or conveyance, not self-propelled, designed for travel upon the public highways, and designed for use as a residence, office, apartment, storehouse, warehouse, or any other similar purpose.”)
4 The relevant restrictions in Beacon Hills were recorded on October 21, 1977. Id. at 737. The restrictions in the instant case were recorded on November 17, 1975.
6 properly enjoined the appellant from placing the proposed
structure in the subdivision. Id.
Likewise, we reached a similar conclusion in the case
of Albert v. Orwige, 731 S.W.2d 63 (Tenn.App. 1987). As
indicated in the Beacon Hills opinion, which relies heavily on
Albert, the structures at issue in the two cases were
substantially similar. Beacon Hills, 911 S.W.2d at 738. In
Albert, we noted, among other things, that “[t]he majority of
courts... have held that removing the wheels or running gear of a
mobile home and placing it on a permanent foundation does not
convert the home into a permanent structure.” Id. at 67. We
then found the structure in question to be a mobile home, despite
the fact that it was a “double-wide” and was constructed of
materials different from those found in many mobile homes. Id.
at 68. Noting that the structure was readily “capable of being
separated and transported to and reassembled at another lot,” we
held that the trial court had properly ordered its removal from
the subdivision. Id.
Upon review of the record in the instant case, we are
of the opinion that the structure which Kerns proposes to place
on her lot in Town and Country Estates is substantially the same
as the structures in Beacon Hills and Albert. The evidence does
not preponderate against the trial court’s findings regarding the
pertinent characteristics of Kerns’ proposed home. Rule 13(d),
T.R.A.P. The home’s distinguishing features -- its off-site
construction, its construction on a steel I-beam frame, its
transportation by road in two sections to the lot, the assignment
7 of a vehicle identification or serial number to each section, and
the fact that it can be relocated easily following reattachment
of the wheels and axles -- are substantially similar to the
features exhibited by the structures in Beacon Hills and Albert.
Thus, the principles set forth in those cases are controlling
here.
In view of its aforementioned characteristics, it is
clear that the home at issue in the instant case falls within the
type of structures that the applicable subdivision restrictions
were intended to prohibit. As explained above, Kerns’ proposed
home is not distinguishable from other structures previously
found to be mobile homes or trailers. See Beacon Hills, 911
S.W.2d at 737-39; Albert, 731 S.W.2d at 64-65. Accordingly, we
hold that the trial court correctly determined that the structure
in question is prohibited by the subdivision restrictions
applicable to Town and Country Estates. The trial court
therefore properly enjoined Kerns from placing the manufactured
home on her property.
The judgment of the trial court is affirmed. Costs on
appeal are taxed to the appellant. This case is remanded to the
trial court for such further proceedings as may be necessary,
consistent with this opinion, and for collection of costs
assessed below, all pursuant to applicable law.
__________________________ Charles D. Susano, Jr., J.
CONCUR:
8 _________________________ Houston M. Goddard, P.J.
_________________________ William H. Inman, Sr.J.