If you're one of millions of Americans who live in manufactured or mobile homes, you might wonder what will happen if you fell behind on your home loan payments. The answer depends on whether your home is characterized as personal property or real property.
If a court considers your home as real property, your state's foreclosure procedures would apply. But on the other hand, if a court would designate your home as personal property, your lender could use self-help repossession or sue you to recover possession of the manufactured home.
The terms "mobile home" and "manufactured home" are often used interchangeably. But a distinction exists.
In 1974, Congress passed the Mobile Home Construction and Safety Standards Act. This Act directed the U.S. Department of Housing and Urban Development (HUD) to set federal construction standards for mobile homes. All mobile homes constructed after June 16, 1976 (the effective date of the HUD standards) must have a HUD label certifying that the home has been inspected and constructed in compliance with the Act.
Congress enacted public law 96-399 on October 8, 1980, which officially changed the name of this type of home from "mobile home" to "manufactured home." So, the term "manufactured home" is typically used to describe a home that is constructed pursuant to the HUD construction and safety standards, whereas the term "mobile home" refers to homes built before June 15, 1976, when the federal standards took effect.
In almost all states, manufactured homes are initially considered personal property. Once the home is placed on land, however, the question of whether the home is personal or real property arises.
The first step in figuring out whether your manufactured home is real property or personal property is to see whether your state has a statute that governs this topic. Your state likely falls into one of the following categories:
To learn how to research your state's statutes, follow the tips in Finding Your State's Foreclosure Laws.
If no statute governs the conversion of a manufactured home to real property, courts will evaluate the connection between the manufactured home and the land the home sits on. The relevant question is whether the home has been modified and attached to the land to the extent that it should be considered part of the real property.
Courts will look to the following factors:
Also relevant is the intent of the homeowner and whether the homeowner owns both the manufactured home and the land it sits on. If the homeowner intended to connect the home to utilities (for example, the homeowner contacted the utility company and requested a start date for service) but had not yet done so, courts will still use this as evidence that the manufactured home is real property.
Some courts will also use the fact that the homeowner owns both the manufactured home and the underlying land as evidence that the manufactured home is real property.
If your state has a statute that dictates whether your home is real or personal property, simply having a clause in your manufactured home loan documents specifying otherwise won't be sufficient. But if it's unclear whether your home is personal or real property, a court will give weight to such a clause.
By figuring out whether the manufactured home is personal property or real property, a lender and borrower then know what process the lender must use to recover the home if the borrower defaults.
If your manufactured home is real property in the eyes of the law, your lender should have recorded its security interest in your home in your local county's land records and, in the event of your default, your lender must use your state's foreclosure procedures.
If your manufactured home falls under the legal definition of personal property in your state, the repossession procedures set out in Article 9 of the Uniform Commercial Code (UCC) must be followed by your lender.
Although the UCC allows lenders to choose between self-help repossession or replevin (a lawsuit to recover goods) to retake ownership of security in the event of a borrower's default, self help is allowed only if there will be no breach of peace, or public disturbance. It's unlikely that a lender would be able to take ownership of an occupied home without breaching the peace, so most lenders will sue the borrower to recover the manufactured home.
The process by which a lender can retake possession of personal property serving as security for a loan in default is set out in the state statutes.
If you're facing a foreclosure or repossession of your home and need specific information about your particular circumstances, consider talking to an attorney in your state.