Common law cases relevant to mobile homes

Mobile homes, also known as tiny homes on wheels are the first step above hidden homelessness – people living in cars, garages, sheds and overcrowded conditions. Mobile homes are made in factories, while tiny homes on wheels tend to be DIY projects.

Until the 6th Labour government, they were left alone, with MBIE determinations making it clear there was a dividing line between chattel (vehicles) and realty (buildings). But that changed around 2019. Local governments began to issue abatement orders and notices to fix, alleging mobile homes were buildings. The class of people who live in such housing cannot afford to fight, and in the few cases where they did – most notably Dall v MBIE, Dall won because he was represented by a lawyer.

More recently, there was a case in Auckland, Beachen v Auckland Council where unfortunately Beachen acted without a lawyer (pro se) and he lost. However a review of the case opened the door to the most important precedent-establishing cases relevant to the question. Elitestone v Morris [1997] was citied by the NZ Environment Court judge in Beachen, where the Council and the judge cited Elitestone to bolster their arguments. However, the council’s lawyers, as officers to the court  failed to cite the extensive case law that refuted their arguments. Had Beachen retained a lawyer who had read Elitestone, the Council would have had no case.

Elitestone says:  

“If a structure can only be enjoyed in situ, and is such that it cannot be removed in whole or in sections to another site, there is at least a strong inference that the purpose of placing the structure on the original site was that it should form part of the realty at that site, and therefore cease to be a chattel.”

and

“A house which is constructed in such a way so as to be removable, whether as a unit, or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel. It must have been intended to form part of the realty.”

This is not a technical loophole. It goes to the heart of law, but also offers a solution to the severe affordable housing crisis that is polarising NZ.

In 2024, Auckland Council presented Beachen in an abatement order it had issued to a West Auckland landowner who was leasing rural parking spaces to three tiny home owners, alleging they were minor dwellings without consent. When they presented Beachen, they were provided with an analysis of the case and an Amicus Curae, after which the owner invited the Council to prosecute. They conducted a second site visit and when the abatement order was received, it only spoke to a very minor issue regarding water seen on the outside of a wastewater pipe. When asked why there was no abatement order on minor dwellings the council replied orally that it was a “grey area”. 

 

Question of Law:   Mobile Home… realty or chattel?

Realty = Minor Dwelling > Dwelling > Building > Structure > Fixed to Land > Land

In Beachen v Auckland Council [2023], the judge wrote in [18] “…, to be a “minor dwelling” the tiny home must be a “dwelling”. To be a dwelling it must, among others, be a “building” and to be a building it must be a “structure”. The reasoning stopped at structure. The final legal question was whether the unit was fixed to land, and therefore part of the realty rather than chattel.

Property Law:

Realty is real property / real estate as opposed to chattel (personal property). In Jurisprudence [1902] §155. Movable and Immovable Property, NZ’s most eminent jurist, Sir John Salmond, former NZ Solicitor General and Supreme Court Judge, set out the distinction between land and chattel:

Among material things the most important distinction is that between movables and immovables, or to use terms more familiar in English law, between chattels and land. In all legal systems these two classes of objects are to some extent governed by different rules, though in no system is the difference so great as in our own …

“Fixed to land” is the statutory phrase. “Annexed to land” is the common-law doctrine explaining when an object has become part of the realty.

The Dividing Line:

Case law in the UK has long focused on the dividing line between things which are fixed and not fixed. (Horwich v Symond [1915] 84 LJKB 1083] & Savoye and Savoye Ltd v Spicers Ltd. [2014] EWHC). 

The question is rarely binary. Degree of attachment, purpose of placement, ease of removal, services connections, and objective permanence may all be relevant. The finder of fact must decide whether the item remains chattel or has crossed the line into realty.

The New Zealand Distraction:

In contrast, recent New Zealand case law has focused on a subsidiary question: is it a vehicle? That arises because the leading appellate authority, Te Puru, was a Building Act 2004 case considering s 8(1)(b)(iii), where a building includes a vehicle that is immovable and occupied by people on a permanent or long-term basis.

That vehicle inquiry risks obscuring the more fundamental question: is it fixed to land?

What should be done instead?

While the present law is uncertain, and some council responses may frustrate housing supply, simply obtaining a court declaration that many mobile homes remain chattels unless fixed to land is not enough.

Good government also requires a reasonable, affordable and rapid approval pathway for suitable sites.

Covenant on Title:

One practical planning tool is a time-limited covenant on title agreed with the landowner. This is flexible because it is site specific.

The filing cost is modest. The covenant should be based on a standard form rather than negotiated case by case between council and private lawyers.

It should begin with a simple application setting out:

• what unit is proposed
• where it will be located
• number of occupants
• wastewater arrangements
• site coverage
• setbacks
• parking
• access
• nuisance controls

It should not automatically apply minor dwelling rules where the unit remains chattel and is not fixed to land.

When the need passes, the unit can usually be removed intact. In nuisance cases, enforcement may be more practical than with permanent structures because the unit itself can be removed.

Administration

The checklist should be reviewed by the duty officer and, if compliant, approved promptly and filed with LINZ.

In lieu of lost rates revenue, the applicant could pay:

• an initial filing fee
• a first-year local rates equivalent payment
• an annual renewal fee thereafter

A central register could manage approved units and locations. Much of the process could be automated.

Bottom Line

While lawyers debate a technical matter of property law, politicians cannot deny that New Zealand faces a serious housing affordability crisis damaging the social fabric.

A legal win alone would only expose the policy vacuum.

Mobile homes offer an immediate interim housing option where government has been part of the problem and should now become part of the solution.