July 2016 Bar Bulletin
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July 2016 Bar Bulletin

Creating Workable Protections for Manufactured Home Owners: Evictions, Foreclosures and the Homestead

By By Rory O’Sullivan
and Gabe Medrash

(Second of Four Parts)

 

This article originally appeared in the Gonzaga Law Review in 2014. As noted by the authors, the article discusses a problem that has yet to be fixed, so it remains relevant. It is reprinted here with permission.

C. The Homestead Exemption

“Long before the adoption of homestead exemption,” historian Paul Goodman writes, “laws in the colonies and then in the states constrained the power of creditors over debtors.”52 He references, in particular, the medieval English law elegit adopted by some colonies, “which protected one half of a debtor’s land from seizure by creditors”; stay laws, which were “short-term moratoria on debts, which temporarily protected [debtors’] property and postponed their obligations to creditors”; the abolition of debtors prisons; and exemptions of various forms of personal property from seizure, “such as mechanics’ tools and farmers’ implements, livestock, household furnishings, and the family Bible and church pew.”53

While such laws were common throughout the early Union, the homestead exemption was at first found only in the Texas territory under Mexican rule.54 Built on Spanish and Mexican precedent, the homestead exemption’s original intent in the Texas territory was “to attract American settlers in the 1820s by offering them free land secured from any creditors of theirs who resided in the United States.”55 The exemption proved popular enough that “[u]nder Mexican rule Texas became a haven for absconding debtors and thus an irritant to the United States.”56 Regardless, after Texas won independence from Mexico, the Texas legislature enacted the first law for homestead protection in 1839, followed by a constitutional homestead exemption in 1843, and again a renewed constitutional provision in 1845 when Texas joined the Union.57

Following Texas’s lead, homestead exemption provisions spread throughout the United States in the middle of the nineteenth century. Such provisions spread particularly quickly throughout the South, which was hard hit by a national banking crisis in the mid-1830s.58 In the North, the homestead exemption was championed by labor advocates who hoped that land reform — opening the public domain to settlement, and guaranteeing that settlement with homestead protections — would clear a labor surplus brought by an influx of immigrants.59 “Whatever the intent of the laws,” Goodman writes, “they may have strengthened the ethos of competitive individualism by offering prospects, however illusory, that the state stood ready to protect families against the perils of the market, a promise that served to smooth the painful transition from an agrarian to an industrial republic.”60

D. Homestead Protection in Washington and its Expansion to Include Manufactured Housing

Statutory homestead protections first appeared in Washington prior to statehood; a homestead exemption was first enumerated in a Washington statute in 1854.61 Under this law, “[d]wellings and other buildings, to the value of five hundred dollars” were exempt from execution in satisfaction of a judgment.62 The earliest Washington homestead exemption “was designed to protect owners of land granted by the United States before statehood, and later grantees.”63 The homestead exemption was later incorporated into the Washington State Constitution as Article XIX when it was ratified in 1889.64 This Article reads, “The legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.”65 Pursuant to this mandate, the 1895 Washington legislature enacted homestead exemption statutes, which as originally written declared, “The homestead consists of the dwelling house, in which the claimant resides, and the land on which the same is situated, selected as in this act provided.”66 This Act has been amended several times since its initial codification in the Revised Code of Washington at Wash. Rev. Code section 6.13.

In 1980, then-Attorney General Slade Gordon wrote an opinion arguing that a manufactured home may be claimed as a homestead, regardless of whether the homeowner owns the land on which the manufactured home is sited. (FN 62.1) Gordon relies on the Washington Supreme Court decision, Downey v. Wilber,67 which declared that a portable bungalow resting on leased land may be considered a homestead. That decision reasoned that though the portable bungalow owner did not own the land on which the bungalow rested, the homestead exemption statute does not necessarily require “that the interest of the claimant in the property ... be title in fee.”68 Further, the court reasoned:

Such a construction, we think, would be contrary to the purpose and spirit of the statute. Its purpose is not to give or confirm title in the claimant, but is to prevent a forced sale of the home; in other words, to secure the claimant and his family in the possession of his home. Seemingly, therefore, if a claimant has a sufficient interest in real property to entitle him to maintain a home thereon, he has such an interest as will entitle him to protection under the homestead statute.69

Gordon recognized the clear extension of this reasoning to manufactured home owners who do not own the land on which their homes are sited, and concluded that a manufactured home may be claimed as a homestead.70

Other states have similarly interpreted their homestead exemption statutes to extend to manufactured homes located on rented land. For example, Robert Laurence traces the evolution of homestead law in Mississippi, Nebraska and Utah as it expanded to protect manufactured homes sited on rented lots. By applying the judicial reasoning that accomplished these expansions, Laurence argues that Arkansas law also extends such homestead protections.71

In particular, the judicial reasoning Laurence finds most applicable in the cases he examines regards the connection between a manufactured home and the land on which it sits: in a Mississippi case examined by Laurence, the court reasoned that in order for a manufactured home to be protected as a homestead, the manufactured home owner must have an assignable interest in the land;72 in a Nebraska case, the court upheld a manufactured-home homestead exemption as the manufactured home was “substantially, if not permanently, affixed to the land,” and the manufactured home owners had a long-term lease;73 and finally, in Laurence’s Utah case, a “Bankruptcy Appellate Panel was clear, that, if a ‘mobile home’ needs by definition to be attached to land, it need not be attached to the debtor’s land.”74 Further, in each of these cases, Laurence explicates how the court applied the principle of liberal construction to the decision. In doing so, he draws attention to the general court practice of treating homestead exemption protections as liberally construed for the benefit of the debtor.

The basis in Washington for the homestead protection of a manufactured home sited on rented land, however, is based neither solely on case law nor on Gordon’s Attorney General Opinion. In 1981, just one year after the opinion was issued, manufactured homes were incorporated into the homestead statute’s exemptions,75 though that amendment referred to manufactured homes as “mobile homes,” and that is how the language still reads today. More fully, the current terms of Wash. Rev. Code section 6.13 governing what may constitute a homestead read,

The homestead consists of real or personal property that the owner uses as a residence. In the case of a dwelling house or mobile home, the homestead consists of the dwelling house or the mobile home in which the owner resides or intends to reside, with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon. A mobile home may be exempted under this chapter whether or not it is permanently affixed to the underlying land and whether or not the mobile home is placed upon a lot owned by the mobile home owner. Property included in the homestead must be actually intended or used as the principal home for the owner.76


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