oral argument this morning february twenty third two thousand and eighteen is case number seventeen dash six zero two five and rave bench him benjamin and bennett at all the iowa's common law fixtures there is no question that the manufactured home is real property and nothing in iowa is tax code changes the conclusion first of the bankruptcy court held there's no question that the home is actually annexed to the reality to the realty excuse me second the bankruptcy court raise some question whether the home and the underlying real put to the same use but made no finding on this point there is no serious question that the home and the underlying realty are put to the same use the both are used as the debtors homestead the documents submitted to the bankruptcy court indicate that the law on which the home sits is a home site soley to be used solely for the homestead home is real property under iowa common law is where the dispute lies in this matter and the paddock not the debtors attached the home to the realty and that's important because time period it is at the time when the manufactured home is placed on the realty is you know ok so what was the evidence of the intent at the time the home was placed on the realto the the evidence well the evidence in this matter is the documents that were created when the home was sold to the but that's a different time that's a different time frame than what you just said which was the intent comes up at the time the home is placed and now you just said well it comes up at the time of the contract so that's the question what we don't you know i mean unfortunately there's not a document that was been put into the record here that states that the paddocks intend at the time that the home was installed there is additional evidence however that the intent to was installed then all we can look at is how it was installed to make the determination of permanency isn't that correct because the contract didn't exist at that point in time yeah well i mean i would you're writing and we don't have that then we do need to look at the method of the installation and and frankly that also supports the paddocks and tank in this case  the fact that the home can be moved does not defeat an intent to make it permanent or that it you know has become a permanent exception to the realty i mean you know crank cornell college versus crane is clear about that it's the home be you know permanently or even physically attached to the reality it is you know solely for the use for use as a homestead and that was the intent when the home was installed in two thousand and three but a lot has always been is a permanent exception to the realty well under i well actually this is broadly that the method of attachment is some evidence of intent i suppose but if the home can be as the bankruptcy judge found jacked up and moved doesn't that kind of change the picture and don't we really have to look at what was the intent of the  that this home was annexed into and became part of the real estate when the evidence shows that they kept it separate from the real estate in terms of they sold it under a bill of sale  foundation the testimony show the foundation of the home is a peer footing foundation under iowa law a peer footing foundation for manufactured home is a permanent foundation when you look at s there is the law in iowa is not that the home has to be attached to the realty so that it can never be moved the to the structures in both ford and cornell college were movable and in fact in point of college the structures were moved about the promise s because they were solely dedicated to the purpose of the realty which was farm or farm and you know farm use they were basically necessary to the land here you have the same structure the home and the land are solely for the use for use as a homestead now sighthill homes can be moved as well but they cannot be moved without significant damage to the home in the foundation and in this case the only testimony about whether there would be damage to the home and the foundation came from his sleigh maker representative of the paddock and she testified that both the home and the foundation  damaged by moving the home by removing it from the site but didn't she but didn't she also testify that she did not know what the foundation why she'd never seen it she testified that she never actually looked up the foundation she did testify that she understood the foundation to be your similar to the foundations of the other homes in the community that you know they were designed to be permanent foundations for these homes but the only the only evidence here in terms of what actually was there was the tatters isn't that correct i would not agree that the only evidence of what was actually there is the doubters we there are there are photographs submitted that show that not only are the hole i mean they don't show the foundation of the home but they show that there is concrete installed on the lots to make driveways and sidewalks to put up sheds there are pictures of the debtors home it looks more or less like a site built home and you know in conjunction with all of the evidence that appear footing foundation constitutes a permanent foundation for a manufactured home and the fact that the debtor observed that there may have been some imbalance in the foundation does not defeat the fact that this foundation attaches the home permanently you know in terms of the common law to the underlying reality is very only if the debtor were to pay off the installment contract but say the debtor won the lottery or inherited money pays off the installment contract could the debtor absolutely that ever would be permitted to move the home from the site provided that the debtor returns the site to the condition it was in before the foundation for the home was installed and that's clear in the document but the debtor didn't put that i don't have a contract in front of me but it is in the ground lease which is the document submitted as twenty six dash two i don't know what page it's on right off the top of my had played that is what mislay maker testified to and it is in the document because i don't recall seeing that in the document i'm sorry i don't recall seeing that in the document but well what figure this is a no brainer this was personal property and i guess i base that upon my forty some years of experience from practicing law in the first twelve which i practice was a general practice doing some real estate work i'm doing some better credit or work on the ground and in that sort of thing and i prepared a nice summary of all my arguments to present to the court it clearly erroneous or is it a mix question of fact and law that requires do noble review which you know if we're going to talk about the facts is that a clearly erroneous standard or do you think the law has been applied correctly i mean i'm not exactly sure which which way we're supposed to review what your position is on why judge collins should be affirmed or your honor i just see this in the in the legal relationships between the parties then the conclusion as to whether this is personal or real property is primarily the term and i believe that the proper standard of review this is that the clearly erroneous standard i think that the iowa cases make it clear that there are three three prong to be applied and that if you review the cases they all are primarily a factual analysis based upon that to which they may apply the readily discernible principles that are there pretty clear after iowa law let's take for instance the ford case in that case well we know the we know the test so so tell me what's what's so clear in this case about the intent of the paddock at the time that it installs this home on the lot so i think it but time  installed i don't think there is any evidence of what they are of what their actual intention was at that time i think we can look back to the record in this case and determine from their pattern and practice th primary intent it was to it was to sell these homes to people and like it like a good b c or trailer courts that we have is to maintain a centrally a community of manufactured homes which is their declared intent in the documents mr shortly let me ask you this when you talk about their intent at the time the mobile home was placed and the underlying contract that was entered into between the parties can't your isn't it possible that your client agreed that it was a fixed year so that intent is irrelevant at this point because he'll sign it or he signed a contract saying that the manufactured home was a fixed year under the lease agreement well they satisfy those requirements and the secured party is satisfied they can remove the home if i want to but i don't they need that don't they need the consent of the landowner which would always be the attic actually let  me go back to what you just said where does it say they can remove the home if they want to well if you go if you go to the lease right there are several places in the statements of an attempt i would suggest first the landowner and the resident agree that the home shall be installed as a permanent improvement and fixture period and that of course is what the appellant in this case  relying on yeah i'm familiar with that but you drop down a couple more paragraphs and they say go home and any other improvements covered under the financing documents may not be removed from the home site without the prior permission of the secured lender to pay so wicked so that that says it can't be removed that doesn't say can be kitsis it can be made up be removed without the prior permission  hearsay and that the consent to remove all is by implication not direct it's set certain conditions for the right to remove that that's when it but mr shortly isn't the two elements that you talk about under part three one refers to the land owner and one refers to the secured creditor and i understand that they're both the same in this case but isn't there a distinction between landowner and secured creditor under the law and there certainly is some that's one of it's one of the things that i would was intending to talk about the secured creditor in this case is clearly a secured creditor of personal property installment contract very clearly talks about the title to the manufactured home it does what the title itself doesn't appear but it talks about the title of the manufactured home remains in the seller's hands until the purchase price is paid in full at which time the title will be conveyed by a bill of sale right so what do you mean there's nothing in the record about the titles well there's there's i'm talking about the motor vehicle title part of it that wasn't actually introduced into the record at all ok let's go back to my my question that i had asked you mr mr shortly i had asked you where does it where does the contract allow the getter to remove the home because you said the contract allows it and i'm still trying to find that well it's in that paragraph that i read to you your honor as long as i satisfy the requirements of the secured lender they could remove the home from the property well ok i want to take a look at paragraph it's in section roman numeral eight paragraph four all right the home may be removed with the consent of the landowner it's not what it says pardon me that's not what it is so i don't have the exact language in front of me i would get up  ok well let's talk about let's talk about the conditions for consent instead so what would the debtor have to do to get the consent to the use of the landowner or the secured creditor to remove the home well or better yet let's talk about the law if if a contract says you cannot do something without the consent of somebody else what is the law are getting their consent can that consent iowa on that is that the withholding of the consent to remove one's property from the property of another must be reasonable and also that the the lease goes on to set out the conditions under which the property may be removed and the what one must do in order to obtain the consent of the landlord you have to first of  well well we'll dig through that i even got a couple minutes left but i guess i'd like to hear from you as to why we should up hold the bankers court's decision well because i think the bankruptcy court decision more more clearly conforms to the to the to the rule set of the common law set out by the i was supreme court the it's clear under the documents that the the the paddock is trying to have it both ways here are trying trying to have a permanent fixture where as the facts of the situation are that those houses is placed upon pierce that keeps taking into the ground and requiring a leveling of all there's nothing in the rest of the record to suggest that the whole can't be readily as readily removed as it was brought in there there's nothing in the record that says that the home has been put together in such a fashion that it could not be unsnipped as they call it and  the two halves removed placed on either wheels or on some lives depending on the way that it was brought in or the mover that would be hired and taken to another location when you go through that entire series of events though couldn't you say the same thing about a home that's placed on a foundation it can be moved it may not be easy to move it but even at even a home that's on a permanent foundation could be moved when you start saying well we have to do this we have to put wheels on it we have put axles on it you know i mean a foundation can sink just as easily as here's what does this from any of their homes that this hole was brought saying that evidence that's in evidence somewhere well i think it's clearly the implication from the record is clear that the home was moved on to the property in two thousand and three  brierly you have a little over four minutes on your honor's i would like to go back to the initial question about the timing of when the intent is measured and upon  reflection i think i had assumed it was the moment when the home is attached to the realty but looking back through the materials there is nothing in the cases that specifically states it is measured at the time the home is attached or at the moment the home is attached the realty i think however that that is a reasonable conclusion but here there is no evidence that the paddocks intent would have changed between two thousand and three and two thousand and six you know as mr shortly stated this is a manufactured home community and the homes were brought in for the purpose of providing a homestead for the residents that intent is reflected in the documents and also is reflected in the method of attachment to the realty and i would just also like to point out that while there you know not only iowa last supports the conclusion that the method of attachment is intended to intended to be permanent federal regulations require that piers be put into the ground to a certain depth in order to deal with the climate you know where we have freezing cited to the bankruptcy court the is there anything this finally is there anything in the record that provides guy on how other manufactured homes in that community were placed whether they were on piers foundations i mean is the bennetts a one off that's different from all the others or you know i mean is there anything in the record that explains how the manufactured homes are normally attached in the paddock there's nothing in the record that provides a technical explanation of the foundations in the not a technical explanation just how many manufactured homes are on permanent foundation versus peers one is slim acre testified that the homes are all that is not in the rock record but it is my understanding that the likelihood is that they are all on piers we did submit to the record and manufactured home foundation guide published by the federal housing  notice of it submitted it with the supplemental brief and no ruling was ever entered regarding that particular request so it doesn't matter my question is does it matter whether it's a foundation or a poor foundation doesn't matter your honor no it doesn't matter don't appear foundation report foundation they all constitute the types of foundation that indicate an intent and intent to make it and they were moved about the property they did not stay in the same place and those were considered fixtures so the key is the tents correct he is the intent yes your honor and the record indicates clearly the pa