Discussion High Court Declaration
Since 2018, several ministries have made it their mission to interfere with the mobile home industry by overlaying regulations for buildings (structures intended to be fixed to land and perform for no less than 50 years).
They argue this is for health and safety although no evidence exists that the homes manufactured by NZ mobile home manufactures are unsafe or unhealthy.
The problem with applying building standards to mobile homes is they are not fit for purpose. Buildings are designed to remain in one place, mobile homes are designed to be relocated as often as annually. Limiting design to approved building materials inhibits innovation and results in inappropriate designs.
However, the big problem is the consenting process which can easily add $5,000 to $25,000 to the cost of a unit, and introduce time delays where instead of 2-weeks in a factory, it can be 2 months or more to coordinate inspections.
The industry is typical of NZ. The largest manufacturers may make 20 units per month, but there are many manufacturers throughout NZ. They cannot afford to fight MBIE, MFE, NZTA and the councils.
Since 2017, a number of them have quit. They find fighting the government is too hard, too aggravating and to expensive.
Government Gone Mad
The affordable housing crisis is more extreme today than ever. In Oct 2017 when Labour formed the government, the state house waiting list had about 6,000 families, many of whom have access to family or whanau land, but cannot afford to erect a building on it. Today, that waiting list has over 24,000 families and it has consistently grown at about 400 per month since 2017. And that is only the families who qualify. Far more are living in cars, tents, garages and overcrowded conditions but on no registry.
Mobile Homes are an immediate, interim solution that can be manufactured in two weeks, installed in two hours and provide a warm, dry, safe, comfortable and affordable solution until the government can implement permanent solutions to end the crisis.
However, instead of supporting innovation, councils issue abatement orders and Notices to Fix, MBIE issues determinations that are inconsistent with case law and determinations issued prior to 2017, MFE wrote into the National Planning Standards interpretations that are contrary to the most fundamental concepts in Common Law, and NZTA declares towing a mobile home over 2.5m wide is illegal because it does not qualify for a WOF.
This is regulatory creep. It does not appear to have been sanctioned by law or government policy, and it deprives the nation of a real solution to the crisis.
Common Law began in 1066 when William the Conqueror claimed absolute ownership of all land in England, and over all fixtures attached or annexed to land. This property is called realty or real estate and it remains the core basis of land law.
In 2022, the basic principle remains, indeed it is the basis of Sovereignty. The Crown holds absolute ownership over all realty in New Zealand, by virtue of the Treaty of Waitangi, and it then issues a bundle of rights that today are called the Record of Title as found on the LINZ Land Register.
Excluded from realty is chattel, or personal property, meaning property not fixed or annexed to land. A castle is realty and is subject to the rights of ownership granted by the Crown. But a traveler’s caravan parked on the village green belongs absolutely to the person, not the Crown or the village.
Mobile homes are chattel, not realty, and as soon as a High Court issues a declaration stating so, it deprives the various ministries and councils of the core tool of their regulatory creep. They can no longer abuse existing law and regulation.
In-so-far as the Crown has the power to do what it wishes, Parliament and the Crown can change the law, and conflate chattel with realty. But this has far reaching implications that undermine the fundamental basis of NZ’s unwritten constitution. Among others, mortgage banks, insurance companies and conveyancing lawyers would be likely to oppose in the strongest terms, as it would take decades and millions to sort case law.
Alternatively, the respective ministries can acknowledge the need for chattel housing and storage… mobile homes, converted containers and newer modular designs coming out of China and elsewhere.
It can work with the industry to develop fit-for-purpose regulations that ensure health, safety and durability, but done in a way that ensures affordability, timeliness and ongoing innovation. MHA invites this.
Those regulations need a two-prong approach. MHA member are manufacturers. They mass produce units. They need type approvals that includes features and options. The other group are the DIY tiny home on wheel makers. These typically are either to be builder-occupied or made for friends and family. A cross-over occurs when the DIY builder finds market response and begins to make units for customers.
That will take time, and the first step is to bring central and local government to the table. Because of their opposition, the first stage is to have the High Court declare their approach of treating chattel units as realty is ultra vires. That is the extent therefore of this web page.
The Elements of a Declaration
- All Buildings are Structures
- All Structures are Realty
- All Realty is Land or Fixed/Annexed to Land
The first two legal principles should be a matter of summary judgement. There should be no debate, as this is fundamental to Common Law, Land Law and Sovereignty.
The Third is a continuum that has been subject to centuries of case law and jurisprudence. MHA will ask the court to make a delineation with two lines dividing black from grey from white.
Black: no argument, it is realty.
White: no argument, it is chattel.
Grey sets out the areas where each case becomes a matter of fact to be determined in a court of law.
MHA seeks to have clarity so its members can tailor the design of their products to ensure they remain in the white side, so they then can negotiate with government on regulations that give the industry certainty.