September 2016 Bar Bulletin
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September 2016 Bar Bulletin

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

(Third of Four Parts)

By Rory O’Sullivan
and Gabe Medrash


(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.)

Part II – Protecting Manufactured Homes in Evictions:
Literature Review

Just as academic literature has yet to explore the ways in which homestead exemptions protect manufactured homes, there has been little scholarly work engaged with the broader problem of protecting manufactured homes in eviction proceedings. The initial contributions to this discussion, however, provide a helpful starting point.

In “The Right to Remain: Common Law Protections for Security of Tenure,” Florence Wagman Roisman argues “for a renewed litigation approach” to strengthen the common-law basis for security of tenure. Particularly, she argues for limiting a landlord’s ability to terminate a lease absent a showing of good cause.97 With special regard to those who own manufactured homes and rent the land on which they are sited, she recognizes, “Involuntary displacement ... can cause significant economic loss,”98 and with regard to those at risk for eviction more generally, that involuntary displacement can both “provoke intense psychological harm”99 and create problems for society at large.100

Roisman argues for the development of two protections to mitigate these problems by preventing eviction proceedings: the first an implied-in-law requirement of good faith and fair dealing, and the second an implied-in-law requirement of good cause for eviction.101 Among other reasons for these particular protections, she claims that both would help to level the imbalance of power between those who rent their home, or the land on which their home sits, and their landlords.102 As Roisman’s article is narrowly focused on the development of security of tenure, her contribution to the discussion of protecting manufactured housing owners in eviction proceedings is thus found in how she advocates for preventing those proceedings in the first place.

Once an eviction proceeding is already under way, however, and based on a cause not likely to be avoided by implied-in-law covenants of good faith and fair dealing or a good cause requirement (such as non-payment of rent), a manufactured home and the equity its owner might recover from the home are still at risk. J. Royce Fichtner engages this problem in a law review note regarding Iowa’s eviction procedures. Fichtner argues that eviction proceedings themselves ought to be more equitable, and proposes an amendment to Iowa’s manufactured-home eviction procedures to take into account the substantial interest a manufactured home owner has to lose in an eviction.103

In developing this argument, Fichtner draws a parallel between the interests of manufactured home owners facing eviction and site-built home owners facing foreclosure.104 Noting the significantly longer notice period Iowa law mandates a lender must give a site-built home owner to cure a mortgage default than is given to a manufactured home owner to cure a rent default, Fichtner claims, “Possibly the easiest way to make the eviction process more equitable and less frequent for mobile home owner-tenants would be to lengthen the statutory notice to quit and cure requirements.”105

Fichtner suggests the notice period be somewhere in between the three days currently given to manufactured home owners and the 30 days given to site-built home owners.106 Fichtner further argues that any change to the law should give judges more discretion to “set an equitable time for removal.”107

Fichtner’s note is narrowly engaged with the problem of how to make eviction proceedings for manufactured home owners more equitable, and lengthening the notice period to cure a default in rent would undoubtedly provide many manufactured home owners with the time they need to become current in rent and thereby avoid termination of their lease in the first place. For some manufactured home owners, however, ongoing financial hardship may prevent even an extended notice period from helping to avoid eviction.

Recognizing this, Fichtner suggests, “The Iowa Code could also be amended to give the mobile home owner-tenant time to sell the mobile home in its place,” and points to Connecticut’s eviction procedures for manufactured home owners as a helpful model when thinking about how that amendment could be structured.108 Fichtner’s discussion of this option, however, stops there.

The present article refocuses attention where Fichtner’s leaves off, exploring first how, absent a legislative fix, the homestead exemption can powerfully protect a manufactured home after the eviction of its owner, and second, how Washington’s MHLTA could be specifically amended to avoid situations in which manufactured home owners need to resort to homestead protections.

Part III – Enforcing the
Homestead Protection

A. Manufactured Home Owners’
Post-Eviction Homestead Protection

A plain language reading of Washington’s homestead laws shows that manufactured home owners retain their homestead protection even after they have been evicted from a manufactured housing community. By statute, a homestead is created automatically when an owner occupies a property as a principal residence.109 Once an owner establishes a homestead, that property is protected “from and after the time the real or personal property is occupied as a principal residence by the owner.”110

Further, homesteads are presumed valid until the validity of the homestead is contested in court.111 Because the homestead is protected from and after the time it is occupied as a principal residence, and presumably until the owner abandons the property or establishes a new homestead, the homestead exemption applies to a manufactured home even after the manufactured home owner is evicted from the community.

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