Trailer homes are chatteL NOT REALTY

In 1902, New Zealand’s most preeminent jurist wrote:

 

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 …

5…all objects placed by human agency on or under the surface with the intention of permanent annexation. These become part of the land, and lose their identity as separate movables or chattels; for example buildings, walls and fences. Omne quod inaedificatur solo cedit [Everything which is erected on the soil goes with it] said the Roman Law. Provided that the requisite intent of permanent annexation is present, no physical attachment to the surface is required. A wall built of stones without mortar or foundation is part of the land on which it stands. Conversely, physical attachment, without the intent of permanent annexation, is not in itself enough. Carpets, tapestries, or ornaments nailed to the floors or walls of a house are not thereby made part of the house. Money buried in the ground is as much a chattel as money in its owner’s pocket.

Unlike a chattel, a piece of land has no natural boundaries. Its separation from the adjoining land is purely arbitrary and artificial, and it is capable of subdivision and separate ownership to any extent that may be desired. 

Sir John W. Salmond, 1902,former NZ Solicitor General and Supreme Court Judge, author of Jurisprudence

 

It follows that, normally, things which are not fixed to the building except by the force of gravity are not fixtures. However, there can be exceptions e.g. where a wooden bungalow was constructed on concrete pillars attached to the ground – the bungalow was not like a mobile home or caravan which could be moved elsewhere; it could only be removed by demolishing it and it was, therefore, not a chattel but and must have been intended to form part of the realty:

Elitestone Ltd v Morris [1997] 1 WLR 687. [underline added].

 

Elitestone Ltd v Morris [1997] 1 WLR 687. [underline added].

These tests are less useful when one is considering the house itself. In the case of the house the answer is as much a matter of common sense as precise analysis. 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. ”

Elitestone Ltd v Morris [1997] 1 WLR 687. [underline added]

 

“Whether an object that has been brought onto the land has become affixed to the premises and so has become a fixture (or a permanent part of the land) is a question of fact which principally depends first on the mode and extent of the annexation, and especially on whether the object can easily be removed without injury to itself or to the  premises; and secondly on the purpose of the annexation,
that is to say, whether it was for the permanent and substantial improvement of the premises or merely a temporary purpose for the more complete enjoyment and use of the object as a chattel. The mode of annexation is, therefore, only one of the circumstances to be considered, and it may not be the most important consideration”

 Halsbury’s Laws of England (2012). [underline added].

The GREAT CONFUSION

Years ago, during an Environment Court hearing on a different matter, a council planner dismissed a point of property law by remarking that she had “slept through that class” at university. It was not a joke. It was a dismissive dodge delivered from a position of regulatory authority.

Property law is not obscure theory. The fundamental distinction between realty (land, real property or real estate) and chattel (personal property) is one of the oldest  and most important divisions in property law. That distinction determines ownership, financing, insurance, foreclosure rights, and statutory reach. When it is treated casually, enforcement drifts from settled doctrine toward administrative overreach. That is not the rule of law.

A mobile home (or any activity) that is on a movable trailer that can be towed intact on and off the land (realty) is chattel, meaning laws governing realty do not apply to it.

This distinction  predates modern planning and building statutes by centuries and can be traced through English common law back to Roman legal doctrine.

Under long established property law:

• All realty is land or that permanently annexed to land
• All structures are things permanently annexed to land
• All buildings are structures

Ergo: All buildings are realty; never chattel

When a council issues an RMA abatement order on the basis that a mobile home or tiny home on wheels is a “structure” or a “minor dwelling,” it necessarily presumes the unit is part of the land. If the unit remains chattel, that presumption is false. In that case, the council is acting ultra vires (beyond its statutory authority).

The same applies to a Building Act Notice to Fix. If the notice proceeds on the premise that a mobile home on wheels is a building forming part of the land, without first establishing that it has ceased to be chattel, the council acts beyond power..

The RMA says “structure means any building, equipment, device, or other facility made by people and which is fixed to land” [underline added]. The words “and which is fixed to land” are part of the statutory definition. Accordingly, an abatement order issued under a district or unitary plan asserting that a mobile home or tiny home on wheels is a “structure” — and therefore a “minor dwelling” — is ultra vires if the unit is not fixed to land. A unit capable of removal intact, without demolition and without damage to the land, is not fixed to land. It is therefore not a structure within the meaning of the RMA.

With centuries of settled common law behind it, the meaning of “fixed to land” is not vague or open-ended. It turns on degree and purpose of annexation. A trailer home capable of removal intact, without demolition or damage to the land, does not meet that test. It is not fixed to land.

The same holds true under the Building Act. It states that “building means a temporary or permanent movable or immovable structure.” Enforcement officers sometimes rely on the word “movable” to capture trailer homes. But in law, “movable” refers to structures capable of limited movement while remaining annexed — such as a windmill turning on its pivot or a pontoon rising and falling with the tide — not a home designed to be towed off the land intact. A unit that can be removed as a whole, without demolition and without damage to the land, remains chattel.

In 2024, Auckland Council served an abatement notice on a landowner who was leasing parking space for three mobile homes on his property. Council alleged the units were unconsented “minor dwellings” and relied on the 2023 NZEnvC decision in Beachen v Auckland Council to support that assertion.

In Beachen, the landowner appeared without a lawyer. Council cited Elitestone Ltd v Morris [1997] 1 WLR 687 — the leading case on what is land and what is personal property — but did not point the Court to the parts of that judgment which say clearly that a structure which can be removed intact, without demolition and without damage to the land, remains personal property. Properly applied, Elitestone contradicts the idea that a relocatable unit on wheels becomes a building forming part of the land.

The Mobile Home Association provided the Council with an amicus curiae submission and invited Council to test the issue in Court so the full law could be properly examined.

After a second inspection, the “minor dwelling” allegation was dropped. The inspecting officer staing in writing that it was a “grey area.” A reasonable inference is that reliance on Beachen would not survive a fully-argued hearing, and the allegation was withdrawn before it could be tested.

This issue deserves to be properly tested before the courts but the core problem is demographic. The targets in these cases are usually people at the bottom end of the housing scale. They lack the money to fund a proper court fight or take a case on appeal. They do not have the influence to get the ear of elected officials or ministries. When those affected cannot afford to test the law, misapplied law goes uncorrected and overreach becomes institutionalised.

 

If you are prepared to take it on:

 

Read Here