263 ALI-ABA Course of Study Commercial Lending and Banking Law--2009 January 29-31, 2009 Scottsdale, Arizona Legal and Regulatory Issues in the Creation, Perfection, and Enforcement of Security Interests in Manufactured Homes By Professor R. Wilson Freyermuth University of Missouri Columbia School of Law Columbia, Missouri
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265 LEGAL AND REGULATORY ISSUES IN THE CREATION, PERFECTION, AND ENFORCEMENT OF SECURITY INTERESTS IN MANUFACTURED HOMES R. Wilson Freyermuth * I. SECURITY INTERESTS IN MANUFACTURED HOMES BACKGROUND ISSUES In extending credit to be secured by a manufactured home, a creditor must be aware of how the manufactured home will be characterized. If the manufactured home is to be attached to land, by what process must a creditor create, perfect, and enforce its security interest in the home through the provisions of Article 9 of the Uniform Commercial Code (which governs security interests in personal property), through the provisions of state law governing real estate mortgages, or both? Definition of a Manufactured Home. Article 9 applies to the creation, perfection, and enforcement of security interests in personal property, including goods, which include all things that are movable when a security interest attaches. 1 Article 9 explicitly notes that this definition includes a manufactured home, 2 which it defines as a structure, transportable in one or more sections, which, in the traveling mode, is eight body feet or more in width or 40 body feet or more in length, or, when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein. 3 Is a Manufactured Home Personalty, Realty or Both? Based upon the above definition, a manufactured home that has not yet been attached to land is purely personal property. During the period that a manufactured home remains purely personal property, a security interest in that home can be created, perfected, and enforced only upon compliance with the provisions of Article 9. Once the manufactured home is installed upon a particular parcel of land, however, real estate law potentially becomes relevant. Under real estate law, a fixture is an item of personal property that is so affixed to land that a buyer of the land would presume that title to the item * John D. Lawson Professor of Law and Curators Teaching Professor, University of Missouri; Executive Director, Joint Editorial Board for Uniform Real Property Acts. Special thanks to Ann Burkhart and Bill Henning for their comments. 1 U.C.C. 9-102(a)(44). 2 U.C.C. 9-102(a)(44)(v). 3 U.C.C. 9-102(a)(53). The comments indicate that this definition is based upon the definition found in the federal Manufactured Housing Act, 42 U.S.C. 5401 et seq., and is intended to have the same meaning. U.C.C. 9-102 cmt. 4b.
266 would pass by a deed to the land. 4 By virtue of affixation, an item that is a fixture does not entirely lose its separate identity (i.e., it does not become merged into the realty for all purposes). Thus, a creditor could obtain an Article 9 security interest in a fixture (either prior to or after its affixation), and a fixture may be removed from the realty and sold as goods at an Article 9 foreclosure sale. In other words, a fixture has a split personality, having attributes associated with both realty and personalty. Nevertheless, to the extent that a manufactured home becomes a fixture, there is no question that an interest in the manufactured home could arise and/or be transferred under real estate law. Under real estate law, goods can become so embedded in land that they lose their individual identity and become part of the land for all purposes. For example, real estate law considers most ordinary building materials that have been incorporated into a structure such as mortar, paint, or lumber to be pure realty. Real estate law does not treat such materials as fixtures because they would not likely retain their physical integrity or their value if removed from the land. 5 Likewise, Article 9 makes clear that its provisions do not apply to the creation of an interest in something that is purely land. 6 Of course, even a 2,500-squarefoot stick-built home might technically be movable (i.e., it could physically be lifted from its foundation and moved, albeit at great expense). Nevertheless, courts typically characterize a house as pure real estate and not as a fixture. Thus, a creditor could take, perfect, and enforce a security interest in a traditional home only by compliance with real estate mortgage law. However, based upon the traditionally perceived mobility of a manufactured home, then unless a state s law provides otherwise, 7 a manufactured home retains its individual identity which means it would be possible for an interest to arise in the manufactured home under either Article 9 or real estate law. Mobile Homes and Certificates of Title. A creditor obtains a security interest in a good by having the debtor execute a security agreement describing the good. 8 Most goods are not covered by title certificates, and thus a security interest in nontitled goods is typically perfected by filing a financing statement describing the goods in the central UCC records in the state of the debtor s location. 9 Motor vehicles, however, have long been subject to different perfection rules. Given the ready mobility of vehicles, and in an attempt to discourage vehicle theft, all states require the owner of a motor vehicle to obtain a state-issued certificate of title (COT) 4 Courts typically use a facts-and-circumstances test to determine whether a particular asset qualifies as a fixture. This test typically focuses upon three elements: (1) the intent of the annexor, (2) the degree of physical affixation to the realty, and (3) the degree to which the asset is adapted to the particular characteristics of the real estate. See WILLIAM H. LAWRENCE, WILLIAM H. HENNING & R. WILSON FREYERMUTH, UNDERSTANDING SECURED TRANSACTIONS 15.01, at 3008 (4th ed. 2007) (hereafter UNDERSTANDING). 5 Cf. 9-334(a) ( A security interest does not exist under [Article 9] in ordinary building materials incorporated into an improvement on land. ). 6 U.C.C. 9-109(d)(11) (Article 9 does not apply to the creation or transfer of an interest in or lien on real property other than fixtures). 7 As this paper later explains, in some states, it is possible for a manufactured home to be converted to real estate so that thereafter, the manufactured home would be considered pure real estate. See infra notes 21-30 and accompanying text. 8 U.C.C. 9-203(b). 9 U.C.C. 9-301(1), 9-310(a), 9-501(a).
267 evidencing the owner s claim of ownership in the vehicle. As a result, purchasers of a motor vehicle look to the COT for relevant information regarding title to the vehicle. For this reason, state COT statutes generally require that a secured party taking a security interest in a motor vehicle can perfect that security interest only by application to have that lien noted on the vehicle s COT. 10 Thus, with one notable exception, 11 a UCC financing statement is generally not sufficient to perfect a security interest in a motor vehicle. 12 In times past, today s manufactured home was customarily labeled a mobile home or a trailer, emphasizing its mobility and the perceived temporary nature of its connection to real estate. For this reason, in forty-two states, legislatures have elected to treat manufactured homes like vehicles i.e., as titled goods and require the owner of a manufactured home to obtain a COT evidencing his claim of ownership. 13 Generally speaking, in those states, a secured party can perfect a security interest in a manufactured home at least one that has not yet been attached to land only by applying to have that lien noted upon the manufactured home s COT. Once perfected, that security interest remains perfected for as long as the manufactured home continues to be covered by the COT. 14 Not all jurisdictions, however, have elected to treat manufactured homes as titled goods. In eight jurisdictions which include Connecticut, D.C., Hawaii, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont a secured party would typically perfect its security interest by filing a UCC financing statement covering the manufactured home. 15 If the financing statement indicates that it has been filed in 10 UNDERSTANDING, supra note 4, at 214-217. Article 9 expressly defers to such statutes, making clear that perfection of a security interest in a vehicle covered by a COT statute can occur only upon compliance with the COT statute, and that compliance with the COT statute is equivalent to the filing of a financing statement for purposes of establishing priority over a lien creditor with respect to the vehicle. U.C.C. 9-311(b). 11 If the debtor is a dealer in motor vehicles, a security interest in any motor vehicles held by the debtor for sale or lease (i.e., as inventory) can be perfected by filing a financing statement. U.C.C. 9-311(d). 12 U.C.C. 9-311(a)(2) ( the filing of a financing statement is not necessary or effective to perfect a security interest in property subject to [state certificate of title statutes] ), 9-311(b) ( a security interest in property subject to [a COT statute] may be perfected only by compliance with [the requirements of that COT statute] ). 13 This list includes Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. In Texas, the buyer of a manufactured home initially makes an election, via a Statement of Ownership and Location (SOL), as to whether the home will be treated as personalty or realty. If the home is treated as personal property, then the SOL functions as the equivalent of a title certificate for the home. See infra notes 73-76 and accompanying text. 14 U.C.C. 9-303(b). 15 U.C.C. 9-310(a). If the security interest is a purchase-money security interest and the manufactured home is consumer goods in the hands of the debtor as would typically be the case then technically the secured party s security interest is automatically perfected under 9-309(1), and no financing statement would be necessary. However, reliance upon automatic perfection would be problematic. If the debtor sold the manufactured home to a buyer who gave value and lacked knowledge of the automatically-perfected security interest, the buyer would take free of that security interest under Article 9's consumer-to-consumer sale rule if no financing statement had been filed. U.C.C. 9-320(b). Thus, to prevent the application of this rule, a creditor taking a purchase-money