Civil Procedure; Executions

Subject:

Civil Procedure; Executions

Requested By:

Honorable Resa L. Harris Assistant Clerk Superior Court Mecklenburg County

Questions:

(1)

Does a mobile home ever assume the character of real property? If so, what are the criteria for making the determination?

(2)

If a mobile home owned by a Judgment Debtor has assumed such character and should it be situated upon land in which the Judgment Debtor has an alienable interest, may the Sheriff levy upon either or both in any order, further presuming that no personal property can first be found?

(3)

If a Sheriff has a reasonable belief that the personal property of a Judgment Debtor when sold will be insufficient to satisfy a Judgment, may he or must he under the Execution Order, levy upon the real property of the Judgment Debtor without requiring the Judgment Creditor to re-execute upon the return of the first Execution Order?

(4)

If a Judgment Debtor owns real or personal property which is rented or leased to a third party, is the Judgment Debtor’s right to receive rental income an asset which can be levied upon or must the Judgment Creditor reach said asset through Supplementary Proceedings?

Conclusions:

(1)

Yes, if it has become a "fixture". See below for criteria.

(2)

Yes

(3)

Yes, he may.

(4)

Rents accrued must be reached through Supplementary Proceedings, rents accruing may be reached through either Execution or Supplementary Proceedings.

A mobile home may become real property if it has been annexed to the land with the intention to make the annexation permanent and is, thus, a "fixture".

The boundaries of the question have been stated in this manner.

A mobile home resting upon its own wheels or cement blocks in a mobile home park or other premises which are not owned by the mobile home resident is seldom intended to be considered part of the realty, nor is it so permanently affixed thereto as to become a fixture . . . On the other hand, it should be equally clear that mobile home has become real estate . . . when attached to the owner’s land by means of structural foundations and considered by him to be a permanent addition to his land. Hodes and Robeson, The Law of Mobile Homes, § 8.11 (1974).

Where the case falls in between the above extremes, the following criteria can be used: (1) Is there an express agreement that the annexation be permanent or temporary? (2) Will severance injure the property? (3) What is the annexor’s interest in the land? (4) What is the nature and purpose of the annexation? Webster, Real Property Law in North Carolina, § 13 (1971). See, also, Price v. Sunmaster, 27 Ariz. App. 771, 558 P. 2d 966 (1976); Gomez v. Dykes, 89 Ariz. 171, 359 P.2d 760 (1961); Clifford v. Epsten, 106 Cal. App. 2d 221, 234 P.2d 687 (1951), for specific examples.

With respect to question number two, G.S. 1-313 provides that if the Sheriff cannot satisfy the Judgment out of the debtor’s personal property then he may proceed against real property. Land Bank v. Bland, 231 N.C. 26, 56 S.E.2d 30 (1949). There is, however, no express directive as to the order in which various kinds of real property should be levied against. Thus, if a mobile home owned by a Judgment Debtor has become real property and is situated on land in which the Judgment Debtor has an alienable interest the Sheriff may levy upon either or both in any order. Note should be taken of G.S. 1-339.46 which provides that the Sheriff shall not sell more property than is reasonably necessary to satisfy the judgment together with the costs of the execution and sale.

As to question three, G.S. 1-313(1) provides that the execution shall require the Sheriff to satisfy the judgment out of personal property; and if sufficient personal property cannot be found, out of the real property. There is no requirement that there be a re-execution before the Sheriff may proceed against real property. An execution is unsatisfied only if no property is found. Hinsdale

v. Sinclair, 83 N.C. 338 (1880); Hutchinson v. Symons, 67 N.C. 156 (1872). Thus, as long as the debtor has any available property, personal or real, the Sheriff may proceed under the original execution.

The answer to question four requires that a distinction be made between rents accrued and rents accruing.

Rents accrued are choses in action. Bank v. Sawyer, 218 N.C. 142, 10 S.E.2d 656 (1940). Choses in action cannot be reached by execution. Grocery Co. v. Newman, 184 N.C. 370, 114 S.E. 535 (1922). Resort must be had to Supplementary Proceedings.

Rents accruing on real property are incorporeal hereditments, interest in lands, and are incident to and connected with the lands. Bank v. Sawyer, supra. Technically this interest should be subject to execution. However, the common practice is to use Supplementary Proceedings. See, eg., Hodge v. Hodge, 12 N.C. App. 574, 183 S.E.2d 800, cert. denied, 279 N.C. 726, 184 S.E.2d 884 (1971). Utilities Engineering Institute v. Magnan, 276 App. Div. 922, 94 N.Y.S.2d 244 (1950). Supplementary Proceedings should also be used to reach rents accruing on personal property.

Rufus L. Edmisten Attorney General

Lucien Capone, III Associate Attorney General