1

FILED

April 15, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

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 I O N
2

AFFIRMED AND REMANDED Susano, J.
3

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
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.

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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 doublewide 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 lowboy 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.
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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
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.

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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
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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
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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:
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_________________________

Houston M. Goddard, P.J.

_________________________

William H. Inman, Sr.J.