                 IN THE COURT OF APPEALS OF TENNESSEE

                                    AT KNOXVILLE                 FILED
                                                                June 26, 1998
FRA NK S ANJ URJO , ET A L.,               ) C/A NO. 03A01-9708-CH-00330
                                           )                 Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
       Plaintiffs-Appellees,               ) BLOUNT CHANCERY
                                           )
v.                                         ) HON . CHE STER S. RA INW ATE R, JR.,
                                           ) CHANCELLOR
LOWELL WO ODS,                             )
                                           ) AFFIRMED AND
       Defend ant-App ellant.              ) REMANDED




EDGAR A. WILDER , Maryville, for Plaintiffs-Appellees.

ROB ERT W . WHIT E, SHE PHER D & W HITE, M aryville, for Def endant-A ppellant.


                                       O P I N IO N


                                                          Franks, J.

               The determinative issue on appeal is whe ther restrictions in defendant’s

deed prev ent his conv erting fourte en units w hich had c omprised motel room s, into

dwelling houses on the property. The Trial Judge enjoined defendant from installing

these units on the restricted prop erty.

               The restriction in defendant’s deed states:

               No mobile homes, trailers, shacks or other tents shall be used as either
               temporary or permanent residential or non-residential structures on the
               above described prop erty.

               In December of 1996, defendant transported to his property the fourteen

units in dispute. These units were taken from a building which had been a Roadway

Inn Motel. Defendant removed the bricks from around the units, affixed a towing

chassis and wheels and transported the units to his property. Plaintiffs, upon

observing the units being placed on the property, brought this action, and at trial

defendant testified that each unit had a bedroom and a bath and units would be joined
for dimensions of 28' X 40' and 28' X 60'. He intended to place these units on a

foundation, remove the wheels and the towing chassis, and construct partial exterior

brick walls and roofs with varying designs.

               Defendant on appeal raises the following issues:

               The Trial Court erred by failing to require the plaintiff to establish the
               meaning of the terms “trailers” and “mobile homes” as stated in the
               restrictive covenant of the deed in question, in light of the fact that the
               terms w ere am biguou s.

               The Trial Court erred by failing to consider a distinction between
               “mobile homes” and “trailers” and the defendant’s structures.

               Our review is de novo on the record of the p roceedings. The reco rd

comes to us w ith a presumption of co rrectness as to the Trial Judge’s ev identiary

determinations, unless the evidence preponderates otherwise. Rule 13(d) T.R.A.P.

               While restrictions on the free use of real property are not favored and

are strictly construe d, the intent of the parties as e xpressed in the restrictions c ontrols

and w ill be enf orced a ccordin g to the e xpress ed inten tion of th e parties . Beacon Hills

Hom eown ers Ass ociation , Inc., v. P almer Prope rties, Inc ., 911 S.W.2d 736, 739

(Tenn . App. 1 995).

               In finding that defendant’s units are prohibited by the restriction in the

deeds, the Chancellor relied heavily on Albert v. Orwige, 731 S.W.2d 63 (Tenn. App.

1987), as well as Beacon Hills.

               The major thrust of defendant’s argument is that his units are “modular

building units” and do not fall within the restriction in the deeds, since mobile homes

are def ined se parately in Tenn essee C ode A nnotate d §55- 1-105 .

               Under definitions in T .C.A. §68-126-3 03(6):

               “A modular building unit” means a structural unit, or a pre-assembled
               component unit, including the necessary electrical, plumbing, heating,
               ventilating and other service systems, manufactured offsite and
               transported to the point of use for installation or erection, with or
               without other specified components, as a finished building, and not
               design ed for r eady rem oval to a nother site.

                                               2
Defendant contrasts this with the definition of a mobile home defined in T.C.A.

§55-1-105(a):

                “Mobile home or house trailer” means any vehicle or conveyance, not
                self-propelled, designed for travel on the public highways, and designed
                for use as a residence, office, apartment, storehouse, warehouse, or any
                other similar purpose.

                The evidence establishes that defendant’s units have characteristics of a

mobile home or trailer, a s well a s a mod ular bu ilding u nit.

                Defend ant’s units w ere placed upon a ch assis and w heels by defe ndant,

which enabled the units to travel upon the public highways, but were also pre-

assem bled stru ctural un its whic h also c an be sa id of a m obile ho me.

                In Albert the defendants had purchased a “structure” consisting of two

units, eac h 52' long and approximate ly 13' w ide. T hey w ere to wed to the site by a

tractor trailer ove r a public hig hway wh ere concre te footers w ere poured on the site

for the foundations. The wheels, axles and tongues were then removed, and it was

argued that the s tructure was in fact a “m odular home ” rather than a “ mobile home ”.

The Court in Albert concluded that the somewhat differing construction in that case

vis a vis a mob ile hom e was “ a distinc tion wi thout a d ifferen ce”. Id. at 65.

                This Court in Beacon Hills was considering a structure known as a

“manufactured home”. The Code also defines a manufactured home §68-126-202(4)

which the Court contrasted with the definition of a mobile home or house trailer

defined in T.C.A. § 55-1-105 . The Co urt conclud ed that the p roposed s tructure “fa lls

within either de finition ”. Id. at 737, and held, relying on the rationale of Albert, that a

manufactured home and a mobile home likewise are distinctions without a difference.

                The defendant essentially urges us to depart from these authorities and

follow the rationale of Brasher v. Grove, 551 S.W.2d 302 (Mo. App. 1977) where the

court held that five units which were manufactured for a Holiday Inn of America and

had been part of a Holiday Inn in North Little Rock, Arkansas, could be placed on

                                               3
lands and utilized as a dwelling, where deed restrictions prevented trailers from being

“constructed on these lands”. The Brasher Court concede d its holding was in acc ord

within the “m inority view ” of ca ses from other ju risdiction s. Albert considered this

view, but elected to follow the “majority view” from other jurisidctions.1

               We are constrained to follow the teachings of Albert and Beacon Hill.

As Beacon Hill notes, the fact that the structure is encapsulated in a pleasing exterior

and aesthetically appealing, would not defeat the intent expressed in land restrictions.

In this case the Chancellor found that defendant’s units possess the characteristics of

mobile homes or trailers that the parties intended to exclude from the property by the

restrictions in the deeds.

               We conclude the evidence does not preponderate against the findings of

the Trial Court and affirm the judgment as entered below.

               The cost o f the appe al is assessed to the appellan t.




                                               __________________________
                                               Herschel P. Franks, J.
CONCUR:


___________________________
Houston M. Godd ard, P.J.


___________________________
William H. Inman, Sr.J.




   1

       The majority view essentially holds that a mobile home does not change its character by
covering its exterior and mounting it on a permanent foundation.


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