MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 ME	6

Docket: Ken-21-69

Submitted

On	Briefs: October	20,	2021

Decided: January	25,	2022

Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

ATLANTIC	HOME	SOLUTIONS,	INC.

v.

QUANG	PHAM

HORTON,	J.

[¶1]	 Atlantic	Home	Solutions,	Inc.	(Atlantic)	appeals	from	a	judgment	of	

the	District	Court	 (Augusta,	Rushlau,	J.)	in	 favor	of	Quang	Pham	on	Atlantic’s	

claim	 against	 Pham	for	 recovery	 of	 personal	 property pursuant	 to	14	M.R.S.	

§ 7071	(2021).		The	court	decided	that	Atlantic	was	not	entitled	to	judgment	

because	the	modular home,	appliances, and	heating	unit that	Atlantic	sought	to	

recover	 had	 become	 part	 of	 Pham’s	 residential	 lot	 and	 had	 ceased	 to	 be	

personal	 property subject	 to	 recovery	 under	 the	 statute.	 	 We	 affirm	 the	

judgment.

I.		BACKGROUND

[¶2]		After an	evidentiary hearing on	Atlantic’s	complaint,	the	court	found	

the	following	facts,	which	are	supported	by	competent	evidence	in	the	record.		
2

See	 Bayberry	 Cove	 Child.’s	 Land	 Tr.	 v.	 Town	 of	 Steuben,	 2013	 ME	 35,	 ¶	 5,	

65 A.3d 1188.		In	September	2017,	Atlantic	entered	into	a	written	contract	with	

Pham	 to	 sell	 Pham	 a	 modular	 home along	 with	 a	 heating	 unit	 and	 several	

appliances.		The	home	was	to	be	installed	on	land	that	Pham	owned	in	Chelsea,	

where	 Pham	 hoped	 to	move	 from	 his	 home	in	Massachusetts.	 	The	 contract	

required	payment	as	a	prerequisite	to	delivery	of	the	home	and	provided	that	

title	to	the	home	would	pass	from	Atlantic	to	Pham	only	upon	either	payment	

in	full	or a	financial	institution’s	acceptance	of	a	retail	installment	contract.

1

[¶3]		A	contractor	built	a	foundation,	installed a	well and	septic	system,	

and	completed	other	 site	work on	Pham’s	land.	 Although	Pham	had	neither	

paid	Atlantic	 directly nor	 entered	 into	 a	 retail	 installment	 contract,	 Atlantic	

arranged	 for	 the	 home	 to	 be	 delivered	 and	 installed	 in	 June 2018.		

A subcontractor	transported two units to	the	 site	 on	 trailers	and	lifted	 them	

onto	 the	 foundation	 with	 a	 crane.	 	 Each	 unit	 comprised	 half	 of	 the	 home’s	

structure	and	roof.		The	units	were	joined	together	and	nailed	to	sills	that	had	

1	 	The	 contract	 also	 contained	 a	 provision	 requiring	 that	 “any	 and	 all	 controversies	 or	 claims	

arising	out	of	or	in	any	way	relating	to [the	contract] be	settled	solely	by	Arbitration	in	accordance	

with	the	applicable	rules	of	the	American	Arbitration	Association	then	in	effect	and	that	judgment	

upon	 the	award	entered	 by	arbitrators	 be	entered	in	and	enforceable	 by	any	 court	 of	 competent	

jurisdiction.”		The	effect of	 the	arbitration	provision	upon	Atlantic’s	claim	under	14	M.R.S.	§ 7071	

(2021)is	not	before	us	because	neither	party	has	invoked the	provision.		“‘[A]	party	may,	by	engaging	

in	litigation,	implicitly	waive its	contractual	right	to	arbitrate.’”		Saga	Commc’ns	of	New	Eng.,	Inc. v.	

Voornas, 2000	ME	156,	¶ 12,	756	A.2d	954 (quoting Navieros	 Inter-Americanos,	S.A.	v.	M/V	Vasilia	

Express,	120 F.3d	304,	316 (1st Cir.	1997)).
3

been	 bolted	 to	the	 foundation. The	 electrical appliances	 were	installed and	

connected	 to the	 lot’s	 electrical	 source, and	 the	 plumbing	 appliances	 were	

connected	to	the	lot’s	water	supply	and	septic	system.	 Further	finish	work	was	

needed to	seal	the	joints	where	the	units	met.

[¶4]		After	installation,	disputes	arose	between	Pham	and	Atlantic	about	

the	quality	and completeness	of	 the	home and	its	installation.		Pham	has	not	

paid	 anything	 toward	 the	 purchase	 price, and	 he	 did	 not	 enter	 into a	 retail	

installment	contract.

[¶5]		Atlantic filed	a complaint	under	14	M.R.S.	§	7071	seeking a	judgment	

and	writ	of	possession	authorizing	Atlantic	to	take possession	of	the	modular	

home, the	appliances, and	the	heating	unit by	disassembling	and	disconnecting	

them	and	removing	them	from	Pham’s	property.		The	disassembly	and	removal	

process,	 which would	 take	 approximately	 one	 day, would	 involve	 using	 a	

reciprocating	saw	to	cut	through	the	fasteners	used	to	attach the	modular	units

to	the	foundation	and to each	other; disconnecting the	wires	and	severing	the	

pipes	to	the	lot’s	electrical,	water, and	septic	hookups; and	lifting	the separated	

modules,	along	with	the	appliances	and	heating	unit,	onto	trailers.

[¶6]		The	trial	court	held	an	evidentiary	hearing, at	which	one	of	Atlantic’s	

owners	and	Pham	testified and	offered	exhibits	admitted	in	evidence, and	then	
4

issued	a	judgment	in	Pham’s	favor.		The	court	determined that	14	M.R.S.	§	7071,	

which	 governs	 “[a]ctions	 to	 recover	 personal	 property,”	 did	 not	 provide	

Atlantic	with	an	avenue	for	relief	because	the	modular	home	and	other	items

had	 become	 part	 of	 Pham’s	 real	 estate	 and	 therefore	 no	 longer constituted

personal	 property.2	 	 This	 determination	 was	 based	 on	 findings	 that	(1)	 the	

modular	home	and	other	items	were “physically	annexed	 to	 the	real	estate”;	

(2) they	and	the	real	estate	had	become	united	in “a	common	enterprise,	in	this	

case	 human	 habitation”;	 and	 (3)	 both	Atlantic	 and	 Pham	 “intended	 [for]	 the	

modular	home	to	be	permanently	attached	to	the	real	estate.”		See,	e.g.,	Hartford	

Nat’l	Bank	& Tr. Co.	v.	Harvey,	420	A.2d	230,	235-36	(Me.	1980).

[¶7]		Atlantic	 timely	appeals.3		See 14	M.R.S.	 §§ 1901,	7071(8)	 (2021);	

M.R.	App.	P.	2A,	2B(c).

II.		DISCUSSION

[¶8]	 	 Because	 14	 M.R.S.	 §	 7071	 applies	 only	 in	 actions	 that	 concern	

personal	 property,	 Atlantic	 could	 not	 obtain	 relief	 under	 that	 statute	 if the	

modular	home	and	other	items	lost	their	character	as	personal	property	when	

2		The	court	noted	that	the	question	of	whether	other	remedies	might	be	available	to	Atlantic	was	

not	before	it.

3		Before	filing	its	notice	of	appeal,	Atlantic	moved	for	additional	legal	conclusions	and	to	alter	or	

amend	the	judgment.		The	court	granted	the	motion	in	part,	striking	part	of	its	initial	reasoning,	but	

declined	to	alter its	dispositive	findings.
5

they	became affixed	to	Pham’s	land.		See	Harvey,	420	A.2d	at	232-36	(examining	

whether	 a	 mobile	 home	 constituted	 personal	 property	 for	 purposes	 of	

section 7071’s predecessor).	 	 Section	 7071	 itself	 does	 not	 define	 “personal	

property,” but	we	have	long	held	that	a three-part test	applies	“for	determining	

whether	personalty	has	become	part	of	the	realty	on	which	it	rests.” Harvey,	

420	A.2d	at	235.		The	criteria	are whether

(1)	[the	personalty] is	physically	annexed,	at	least	by	juxtaposition,	

to	the	realty	or	some	appurtenance	thereof,	(2)	it	is	adapted	to	the	

use	to	which	the	land	to	which	it	is	annexed	is	put,	or	the	chattel	

and	 the	 real	 estate	 are	 united	 in	 the	 prosecution	 of	 a	 common	

enterprise,	and	(3)	it	was	so	annexed	with	the	intention	on	the	part	

of	 the	 person	 making	 the	 annexation	 to	 make	 it	 a	 permanent	

accession	to	the	realty.

Id. (alteration	 and	 quotation	 marks	 omitted).	 	 The	 third	 criterion,	 that	 the	

annexor	 intended	 for	 the	 accession	 to	 be	 permanent,4 holds	 “[s]pecial	

prominence,”	Boothbay Harbor	Condos.,	 Inc.	v.	Dep’t	of	Transp.,	382	A.2d	848,	

854	(Me.	1978),	and	raises a	question	of	fact,	the	court’s	resolution	of	which	we

review	 for	 clear	 error, see Harvey,	 420	 A.2d	 at	 236;	 Forrest	 Assocs.	 v.	

Passamaquoddy	Tribe,	2000	ME	195,	¶	9,	760	A.2d	1041.		We	review	the	trial	

4	 	“The controlling	 intention	 as	 to	 whether	 [personalty]	 becomes	 a	 part	 of	 the	 real	 estate	 by	

accession	is	.	.	.	that	of	the	annexor.”		Bangor-Hydro	Elec. Co.	v.	Johnson,	226	A.2d	371,	378	(Me. 1967);	

see	Far	West	Modular	Home	Sales,	Inc.	v.	Proaps,	604	P.2d	452, 454-55	(Or.	Ct.	App.	1979) (“[W]hen	

annexation	is	made	by	an	owner	of	realty,	an	intent	to	affix	may	more	readily	be	found.	.	.	.	The	fact	

that	 here	 the	 vendor	 physically	 placed	 the	 unit	 on	 defendants’	 property	 does	 not	 detract	 from	

defendants’	status	as	the	annexing	party.”).
6

court’s	application	of	the	law	de	novo.		See Paffhausen	v.	Balano,	1998	ME	47,	

¶ 5,	708	A.2d	269.

[¶9]	 	Atlantic	 argues	 that	the	 court	 erred	 by	 declining	 to	 find	 that	 the	

home	retained	its	character	as	personal	property	because	the	parties	agreed,	

via	their	contract, that	title	would	pass	to	Pham	only	upon	either	payment	in	

full	or	acceptance	of	a	retail	installment	contract.5		The	argument	derives from	

language	in	Sutton	v.	Frost,	432	A.2d	1311	(Me.	1981).		There, we	addressed	a	

dispute	over	the	ownership	of	a	prefabricated	building	that	a	tenant built	on	

leased	land	for	use	as	a	real	estate	office before	the	land	was	sold.		Id. at	1313.		

We	noted	the	general	rule	that	“buildings	of	a	permanent	character	are	a	part	

of	 the	 realty	 and	 belong	 to	 the	 owner	 of	 the	land	 on	which	 they	 stand”	 and

explained	 further	 that	 “[a] building	of	a	permanent	character can	be	held	by	

another	 as	 personal property with	 the	 right	 of	 removal	 only	 under	 some	

agreement,	express	or	implied,	with	the	owner	of	the	land.”		Id.		We vacated	the	

trial	 court’s	 summary	 judgment	 in	 favor	 of	 the purchasing	 landowner,	

concluding	that	disputes	of	material	 fact	existed	as	to	whether	an agreement	

that	 the	 building	 would	 remain	 the	 personal	 property	 of	 the	tenant existed	

5		Atlantic	also	argues	that	the	court	should	have	determined	that	the	home	retained	its	character	

as	personal	property	simply	because	it	would	be	possible	to	disassemble	the	home	in	approximately	

the	same	amount	of	time	that	was	required	to	assemble	it.		We	are	not	persuaded	by	this	argument	

and	we	do	not	address	it	further.
7

between	 the	 tenant and	 the	 original	 landowner,	 and	 if	 so,	 whether	 the	

purchasing landowner	had	actual	notice	of	that	agreement.		Id. at 1315.

[¶10]		Contrary	to	Atlantic’s	argument,	Sutton was	an	application	of—not	

a	 departure	 from—the	 standards	 expressed	 in	Harvey and	 earlier	 cases.	 	 In	

Harvey,	 the	 plaintiff’s	 predecessor-in-interest sold	 a	 mobile	 home	 to the	

defendants,	and	an installment	contract	provided	that	the	home	“was	to	remain	

at	all	 times	personal	property” and	 that	 the	plaintiff could repossess	it	upon	

default	by	the	defendants.		420	A.2d	at	232 (quotation	marks	omitted).		After	

the	defendants	 failed	to	make	payments,	the	plaintiff	 filed	a	complaint	under	

the	predecessor	to	section	7071,	14	M.R.S.A.	§	6012	(1980).6		Harvey,	420	A.2d	

at	 232-33,	 233	 n.2.	 	On	 appeal,	 after	 reiterating	 the	 three-part	 standard for	

determining	whether	the	mobile	home	had	become	“so	related	to	land	on	which	

it	rest[ed] as	to	become	a	part	of	the	land,”	we	remanded	for	the	trial	court to	

apply	 that standard	 because	 the	 initial	 record	 had	 not	 been	 developed	 to	

include	 any evidence	 about	 “the	 nature	 of	 the	 mobile	 home’s	 physical	

attachment	 to	 the	 land[,] i.e., whether	 utilities	 were	 connected,	 whether	 a	

foundation	was	built	and	the	vehicle	placed	thereon,	whether	the	wheels	were	

still	in	 place,	 and	 so	 forth.”	 	Id. at	 234-36.	 	We also	 specifically	 rejected	 the	

6		Section	6012	was	replaced	by	section	7071	in	2009, see P.L.	2009,	ch.	245,	 §§	5-6	 (effective	

Sept. 12, 2009),	but	the	substance	of	the	statute	that	is	relevant	to	this	appeal	remained	the	same.
8

plaintiff’s	argument	 that	 the	contract	provision	stating	 that	 the	mobile	home	

was	to	remain	personal	property	was	dispositive:

The	contract	may	establish	 the	original	intention	of	both	parties,	

but	it	does	not	necessarily	establish	whether	or	not,	in	breach	of	

the	 contract,	 the	 defendants	 may	 have	 subsequently	 affixed	 the	

mobile	 home	 to	 land	 with	 intention	 to	 make	 it	 a	 permanent	

accession	to	the	land.	 Whether	defendants	subsequently	so	acted	

remains	 a	 question	 of	 fact	 to	 be	 decided	 on	 the	 basis	 of	 all	 the	

relevant	circumstances.

Id. at	236.

[¶11]		In	Sutton,	one	of	the	central	factual	issues	was	similar:	whether	the	

tenant	who	had	annexed	the	building	to	the	real	estate	had	done	so	based	on	an	

agreement that	the	annexation	would	be	permanent	and	would	thereby	pass	

title	to	the	building	to	the	owner	of	the	real	estate. 432	A.2d	at	1315.		We	did	

not	 overrule	 Harvey	 in	 discussing	 that	 issue.	 	 In	 fact,	 we	 cited Harvey with	

approval,	 stating	 that	 the	 factors	 for	 “determining	 whether	 an	 implied	

agreement	 exists	 that	 a	 building	 remain	 personalty	 are	 .	 .	 . the	 same	 factors	

involved	in	determining	whether	any	personalty	has	become	part	of	the	realty	

on	which	it	rests.”		Id. at	1314	n.4.	 The	import	of	our	decision	in	Sutton is	that	

evidence	 of	 an	 agreement	 that	 personalty	 annexed	 to another’s	land	 remain	

personalty	 is	 relevant	 to	 the	 question of	 the	 annexor’s	 intent but	 not	

determinative	of	the	question.		Id. at	1313-15.		Other	evidence	relevant	to	that
9

fact-sensitive	question includes	evidence	concerning “the	structure	and	mode	

of	attachment,	the	purpose	and use	for	which	the	annexation	has	been	made[,]

and	 the	relation	and	use	of	 the	party	making	it.”7		Id. at	1314	n.4	 (quotation	

marks	omitted);	see	Harvey,	420	A.2d	at	235-36	(rejecting	the argument	“that	

the	issue	of	the	parties’ intention	[was] conclusively	settled	by	the	language	in	

the	contract”	and	suggesting	 that	evidence	relevant	 to	 the	question	of	intent	

would	 include	 “testimony	 about	 the	 nature	 of	 the	 mobile	 home’s	 physical

attachment	 to	 the	 land[,] i.e.,	 whether	 utilities	 were	 connected, whether	 a	

foundation	was	built	and	the	vehicle	placed	thereon,	whether	the	wheels	were	

still	in	place,	and	so	forth”).

[¶12]	 	 Here,	 the	 trial	 court	 found	 that	 notwithstanding	 the	 contract	

language	 concerning	 transfer	 of	 title	 upon	 payment,	 both	Atlantic	and	Pham	

“intended	 [for]	 the	 modular	 home	 to	 be	 permanently	 attached	 to	 the	 real	

estate.”8		That	finding	is	supported	by	the	evidence	that	the	modular	home	was	

7		Moreover,	as	we	explained	in	Sutton,	the	law	favors	an	inference	that	the	annexation	was	not	

intended	to	be	permanent	where	the	parties	are landlord	and	tenant, especially	where	the	tenant’s	

building	is a	trade	fixture.		See	Sutton	v.	Frost,	432	A.2d	1311,	1313-14	(Me.	1981)(“Where	the	parties	

are	related	as	landlord	and	tenant,	the	law	tends	to	infer	that	annexations	made	by	the	tenant	are	

intended	to	be	temporary,	since	it	is	unlikely	that	the	tenant	meant	to	deprive	himself	of	his	property.	

This	inference	is	 especially	 strong	 where	 the	 annexation	is	 a	 trade	 fixture,	i.e.,	 property	 which	 a	

tenant	 has	 placed	 on	 rented	 real	 estate	 to	 advance	 the	 business	 for	 which the	 realty	 is	 leased.”	

(citations	omitted));	see	also 8	Michael	A.	Wolf,	Powell	on	Real	Property §	57.05[2][b]	(2022).		Both	

of	those	factors	were	present	in	Sutton but	are	absent	here.

8		Atlantic	does	not	challenge	the	court’s	additional	findings	that	the	home	and	other	items	were

“physically	annexed	to	the	real	estate” and	that	they	and	the	real	estate	had	become	united	in	pursuit	
10

installed	 for	Pham’s	use	as	a	residence	on	Pham’s	property, not	 for	Atlantic’s	

continued	use;	that	the	contract	required	payment	as	a	prerequisite	to	delivery	

of	the	home;	that	the	home	was	nailed	to	a	pre-dug	foundation	and	connected	

to	utilities	and	a	well	with	durable	materials;	that	finish	work	was	required	to	

seal	 the	 joints	 where	 the	 two	 units	 met;	 and	 that	 Atlantic	 had	 never	

disassembled	a	modular	home	that	it	had	installed	pursuant	to	a	sales	contract.		

Although	 each	 case	 is	 fact-specific,	 other	 courts	 have	 reached	 or	 affirmed	

similar	 findings	based	on	similar	evidence.		See,	e.g.,	Far	West	Modular	Home	

Sales,	 Inc.	 v.	 Proaps,	 604	 P.2d	 452,	 454-55	 (Or.	 Ct.	 App. 1979);	 Prospecting	

Unlimited,	Inc.	v.	Norberg,	376	A.2d	702,	705	(R.I.	1977);	Hall	v.	U.S.	Bank	Tr.,	

N.A.,	 No. 1:14-cv-615,	 2014	 U.S.	 Dist.	 LEXIS	 190150,	 at	 *13-15	 (W.D.	 Mich.	

Oct. 14, 2014).

[¶13]		Because	the	trial	court	did	not	misapply	the	law	and	its	findings	

are	supported	by	the	record	evidence,	we	affirm	the	judgment.		We	note	that	

our	specific	conclusion	means	only that	Atlantic	cannot	obtain	relief	pursuant	

to	 section	 7071,	 which	 authorizes	 the	 District	 Court to	 order	 the	 return	 of	

personal	property.		See 14	M.R.S.	§	7071(6).		We	are	not	here	called	upon	(nor	

able,	on	the	record	before	us)	to	examine	whether	Atlantic	could	obtain	relief

of	the	“common	 enterprise”	 of	 “human	 habitation.”	 	 See	 Hartford	 Nat’l	 Bank	& Tr. Co.	 v.	 Harvey,	

420 A.2d	230,	235	(Me. 1980).		These	findings	are	supported	by	the	record.
11

by	pursuing	other remedies.		See 14	M.R.S.	§ 7071(10)	(“The	remedy	provided	

in	[section 7071] is	a	remedy	in	equity	and	is	in	addition	to	and	not	in	lieu	of	

another	remedy.”).

The	entry	is:

Judgment	affirmed.

Jason	 Dionne,	 Esq.,	 Dionne	 Law,	 P.A.,	 Auburn,	 for	 appellant	 Atlantic	 Home	

Solutions, Inc.

Quang	Pham	did	not	file	a	brief

Augusta	District	Court	docket	number	SA-2019-578

FOR	CLERK	REFERENCE	ONLY