                     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.




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