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Brownfield Subdivision, Inc. v. Mckee

OPINION FILED MAY 19, 1975.

BROWNFIELD SUBDIVISION, INC., ET AL., APPELLEES,

v.

REX MCKEE ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 24, 1975.

Acting on the complaint of Brownfield Subdivision, Inc., a not-for-profit corporation, and E.J. Buras, the plaintiffs, the circuit court of Champaign County entered an order of injunction prohibiting the defendants, Robert and Mary Ann Collenberger, from occupying what was described as a sectional home in the Brownfield subdivision as a residence. The ground for the order was the court's finding that the structure was a mobile home, a type of structure prohibited in the subdivision by an applicable restrictive covenant. The appellate court affirmed (19 Ill. App.3d 374), and we granted a petition for leave to appeal filed by the defendants.

The restrictive covenant provides in part:

"No building shall be erected on any lot except a one family dwelling house, a garage and one service building and used exclusively as such. Buildings shall be permanent structures of an attractive design. Duplexes may be built on Lots 34, 35, 36, 37 and 38.

No structure of a temporary character, trailer, basement, tent, shack, mobile home or garage shall be used on any Lot, at any time, as a residence, either temporarily or permanently."

The Collenbergers purchased a structure described as an "Armor Home" and a lot in the Brownfield subdivision from Rex McKee, another defendant, who is the president of Illinois Mobile Homes, Inc. A retail installment contract was used by the parties in the sale of the structure. It described the Armor Home as a mobile home and provided that title should remain vested in the seller until full payment was made. The Collenbergers were given a certificate of title which also referred to the Armor Home as a mobile home and stated its year of manufacture, its style or model and its serial number.

The Armor Home here is 52 feet long, 24 feet wide and has a total living area of 1,460 feet. It is manufactured in two separate sections which, when joined, provide three bedrooms, a living room, dining room, kitchen, a utility room and 1 1/2 baths. The sections are built upon detachable running gears, i.e., upon undercarriages, springs, axles, wheels and hitches, which are designed to permit their removal at the location where the structure is to be installed.

Prior to installing the Armor Home on their lot, the Collenbergers constructed a concrete foundation 52 feet long, 24 feet wide and 36 inches deep. Stacks of concrete blocks were placed on top of the foundation. Then, three steel I-beams were placed on top of the stacks. When the two sections were delivered at the lot, they were set on jacks which had been placed on the four corners of the foundation. Workmen then removed the detachable running gears from the two sections and lowered the two sections onto the I-beams. The sections were fastened together by angle irons and 16-penny nails.

After the sections were connected, a mason cemented the ends of the beams and the stacks of concrete blocks to the foundation. The mason also built a perimeter wall of building blocks which was cemented to the foundation. However, the bottom of the Armor Home was not cemented, welded or attached in any way to the I-beams or to the perimeter wall. The structure simply rested on the three I-beams. After the sections were joined aluminum enamel siding was installed on the sides of the structure. A family room was added connecting the Armor Home to a previously constructed garage.

Robert Collenberger testified that he knew of the covenant's restrictions when he bought the lot. He said that although the Armor Home after installation could be transported to another location by reattaching the running gear to the bottom of each section, the structure would first have to be dismantled. This would require removing the aluminum siding, removing the bolts from the angle irons and the nails connecting the two sections, removing the shingles from the roof and disconnecting all the utilities.

Rex E. McKee testified that he sold the sectional home to the Collenbergers. He said that there is a difference between a double-wide mobile home and a sectional home. A double-wide home is two mobile homes constructed so that they may be fitted together to make a large mobile home, and it is portable, he said. A sectional home is designed to be a single dwelling with a single roof, and though it is constructed in two sections, it is not portable, he testified. He said that in his opinion the Collenberger's house was a permanent single house and not a mobile home.

He did admit, on cross-examination, that he had advertised the Armor Home as a "double wide mobile home." The advertisement read in part, "the double wide [mobile home] is composed of two mobile sections, either 10 feet or 12 feet wide, connected together at the homesite to form a 20 or 24 foot wide home. These homes are usually over 50 feet long."

Warren Huddleston, the president of Countryside Mobile Homes, Inc., testified that the difference between mobile homes and sectional homes is that a mobile home's running gear is designed to be a permanent part of the unit. He said that a sectional home's running gear is designed to be detached, that is, it is designed to be removed from the housing unit when the unit is placed on a foundation. He ...


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