Daily Development for Tuesday, July 20, 1999

Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

SERVITUDES; RESTRICTIVE COVENANTS; "MOBILE HOMES" PROHBITION: A permanently installed modular home is a "mobile home" within the meaning of a Georgia restrictive covenant prohiting the placing of "mobile homes" on the subject property.

Rose v. Barbee, 511 S.E.2d 268 (Ga. App. 1999).

Landowners sought, pursuant to a restrictive covenant, an injunction prohibiting adjacent landowners from improving their lot with a modular home, and sought an order compelling removal of the modular home. The lot was subject to the following covenant: "No concrete block houses or mobile homes of any description shall be placed on said property." The issue for the trial court was whether the modular home could be considered within the definition of mobile home for purposes of interpreting the covenant. The lower court ruled that the dwelling was a mobile home, and the Court of Appeals affirmed, finding no abuse of discretion. Evidence tending to show that the home was a mobile home included a receipt for the structure that described it as a mobile home, an order for electrical service that noted that a "new mobile home will be set up in the future at this location," and that the adjacent landowner admitted in their brief that they purchased "what is now commonly referred to as a doublewide mobile home."

Comment 1: For a holding to the same effect, see Toavs v. Sayre, 934 P.2d 165 (Mont. 1997), the DD for October 6, 1997. For another case generally permitting mobile home restrictions, see Cypress Gardens, LTD. v. Platt, 952 P.2d 467 (N.M. App. 1997).

Comment 2: The court dismisses the landowners' claim that the concept of "mobile home" was "unconstitutionally vague," perhaps for the obvious reason that the Constitution would not be implicated in most private restrictions (despite a few maverick holdings to the contrary). But wouldn't the well being of the law be better served by the court's attempting to define where the line exists between "mobile" and "nonmobile" homes instead of relying upon circumstantial evidence and unfortunate misstatements by the parties?

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