February 2, 2009
Dear City Manager:
You have the following question: Is the attached proposed private act that makes the
mobile home owner liable for the tax provided for in Tennessee Code Annotated, ' 67-5-802,
and which makes the permit to move the mobile home contingent upon the mobile home owner
paying that tax, legal?
In my opinion, the answer is no because the private act conflicts with the general law on
that subject, and that general law is part of a comprehensive property taxing statute that is not
subject to modification by private act.
The proposed private act in question provides that:
The Trustee of the County and the Treasurer of [sic] of the City are
hereby empowered and authorized to issue Permits for the removal
and relocation of mobile homes from mobile home parks situated
in their political jurisdictions The mobile home owner must appear
in person [to the county trustee or the recorder, if in the city] to
make application for and obtain the requisite permit(s), and must at
that time pay in full any property taxes due on the subject mobile
home for the current tax year....
That proposed private act clearly conflicts with Tennessee Code Annotated, ' 67-5-802,
which provides that:
(a)(1) Any movable structure that is attached to real property by
virtue of being on a foundation, or being underpinned, or
connected with any one (1) utility service, such as electricity,
natural gas, water, or telephone, shall be assessed for tax purposes
as real property as an improvement to the land where located;
however, in cases where the movable structures are attached to the
land occupied and used as trailer or mobile home parks where the
owner of land is renting spaces or lots for maintaining the
moveable structures, the owner of the movable structure shall be
responsible for the additional tax imposed by reason of the
improvement, and the owner of the land shall be granted a lien
against the movable structure to secure the payment of the
municipal and county taxes. Such lien shall constitute a first lien
February 2, 2009
Page 2
against the movable structure and shall be the only lien granted to
the owner of the land without prior notification to any lienholder of
record....
(2) Any such tax shall be collectible by the owner of the mobile
park on a fiscal year basis, or in the alternative, the owner of the
mobile park shall have the right to collect the tax by the month on
a pro rata share, together with any monthly rents due the owner.
(b)(1) On or before March 1 of each year, the assessor of property
shall furnish to each owner of land used as a mobile home park a
schedule approved by the division of property assessments,
requiring the owner to list all movable structures as defined in '
67-5-501, that were located on the owner’s land as of the
assessment date....
******************************************************
(e) If the owner of land prevails in a suit for reimbursement of
taxes against the owner of a mobile home park or other movable
structure located on the land, the owner of land shall be entitled to
recover the cost of suit, including reasonable attorneys fees.
That statute imposes the tax liability for mobile homes attached to realty on the owner of
the land upon which the mobile home sits. The same statute provides the owner of the land a
remedy against the mobile home owner for the tax. But the private act in question makes the
mobile home owner liable for the tax, even to the point that he cannot move the mobile home
without a permit, and he cannot obtain a permit without having paid the tax due on the mobile
home. The private act and Tennessee Code Annotated, ' 67-5-802 are in obvious conflict.
That view is supported by Belle-Aire Village, Inc. v. Ghorley, 574 S.W.2d 723 (Tenn.
1978). There Belle-Aire Village sued Ghorley for the property tax it had paid to the City of
Athens and McMinn County, for the improvement to the land created by Ghorley’s mobile home
that sat upon it. Ghorley argued, inter alia, that the first lien that Tennessee Code Annotated, 67612 [now Tennessee Code Annotated, ' 67-5-802] granted for the taxes a mobile home park
owner paid on a mobile home fixed to the real property in the mobile home park, was
unconstitutional. The Court upheld that statute against Ghorley’s challenge, declaring that:
T.C.A., s 67-612 represents an attempt by the Legislature to
implement Article II, Section 28, of the Constitution of Tennessee
which was proposed by the limited Constitutional Convention of
1971, approved by the people in an election on August 3, 1972,
and became effective January 1, 1973. That portion of Article II,
February 2, 2009
Page 3
Section 28, which is pertinent here provides as follows:
[There follows the language of Tennessee Code Annotated, ' 67612 (now Tennessee Code Annotated, ' 67-5-802), cited above,
which specifies upon whom the tax liability for mobile homes
located in mobile home parks is imposed]
Analyzing that statute, the Court said:
One of the arguments advanced in the trial court was that the lien
provided for the mobile home park owner against a mobile home
was a “tax lien” which could constitutionally be granted only to the
state, county or municipal governments, not to a private citizen. It
is our opinion, however, that the lien granted to the landowner is
not a “tax lien.” The lien is not granted to the state, county or
municipal government, but to the landowner. Neither does it
secure the payment of taxes to a government entity; instead it
secures the landowner’s claim for reimbursement against the
owner of the mobile home for the amount of taxes on the mobile
home which the landowner has already paid.
Since the lien in question is not a “tax lien,” it follows that the
owner of land used as a mobile home park is not entitled to the
remedies and benefits provided by T.C.A., ss 67-1801 Et seq., 671901 Et seq. And 67-2003 Et. seq., all of which deal with tax liens.
Under the statutory scheme provided by T.C.A., s 67-612, the
mobile home park owner is not the tax collector but is the taxpayer
for the taxes due on the real property which includes taxes
allocable to the mobile home situated thereon. Only the
government may take advantage of the provisions of T.C.A., ss 671801 Et seq., 67-1901 Et seq. And 67-2001 Et. seq. [At 724-25]
However, continued the Court, speaking of the mobile home court’s remedies under
Tennessee Code Annotated, 67-612 [now Tennessee Code Annotated, 67-5-802]:
Statutes relating to the same subject matter should be construed
together. Brundige v. Alexander, Tenn., 547 S.W.2d 232 (1976).
We, therefore, should construe T.C.A., s 67-612 [now T.C.A. 67-5802], insofar as it pertains to a lien, in Pari materia with T.C.A., s
4-2101 [now Tennessee Code Annotated, ' 66-21-101 et seq.],
February 2, 2009
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which provides for the enforcement of liens on personalty when no
method of enforcing them is otherwise provided. When so
construed, adequate means for enforcing the lien in question are
provided. Although the mobile home is treated as real property for
tax purposes, it is treated as personal property for purposes of
allowing the lien in favor of the landowner, as provided in T.C.A.,
s 67-612 [now T.C.A. ' 67-5-802].
Tennessee Code Annotated, 66-21-101, governs the enforcement of liens where the
method is not prescribed.
It seems impossible to escape the conclusion that Tennessee Code Annotated, ' 67-5802 is the taxing scheme that governs mobile homes in Tennessee, and for that reason, the
General Assembly cannot enact a private act that alters that scheme. Tennessee Code Annotated,
' 67-5-802, as interpreted and applied by Belle-Aire Village, Inc, above, clearly makes the owner
of the mobile home park responsible for the tax on the mobile home under Article II, ' 28, of the
Tennessee Constitution, and the private act in question just as clearly alters that taxing scheme by
making the mobile home owner responsible for the tax on the mobile home. Moreover, that
private act also flies in the face of the statutory remedy Tennessee Code Annotated, ' 67-5-802
prescribes when the mobile home park owner has not been reimbursed by the mobile home
owner for the property tax paid by the former.
It should be pointed out here that Tennessee Attorney General’s Opinion 95-071 opines
that the county can sell the real estate of the owner of landowners who rent space to mobile
homes if that landowner does not pay the property tax he owes under Tennessee Code Annotated,
' 67-5-802, and declares that “Because the purpose of the constitutional provision, as
authoritatively construed by the Supreme Court, is to make the underlying land liable for ad
valorem taxes on mobile homes, this tax liability cannot be removed from the landowner.”
There are other legal problems with the private act in question. The BACKGROUNDER
to that private act, says that
...under the current law, the burden and collection and payment [of
the taxes on mobile homes] falls upon the mobile home park
owner, forcing him to become (in essence) a tax collector. Should
someone move without paying, the park owner possesses no police
powers and has no cost-effective legal recourse for collection of
delinquent taxes.
While this statement may have an appeal to fairness, it neglects the reality of Article II, '
February 2, 2009
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28, of the Tennessee Constitution and of Tennessee Code Annotated, ' 67-5-802, which is that
the tax burden with respect to mobile homes fixed to the real property is on the owner of the
mobile home park on which they sit. The problem to which the BACKGROUNDER points does
not actually exist: Under Tennessee Code Annotated, ' 67-5-802, the mobile home park owner is
not a “tax collector,” and he does not “become-in essence: a tax collector:” he owes the tax. The
mobile home park owner is entitled under that statute to attempt to collect from the mobile home
owner in advance the tax he owes, and is given a lien against the mobile home, but tax burden for
the improvement to his land produced by the mobile home lies on the mobile home park owner,
and ultimately on the mobile home park’s land.
In fact, the mention in the BACKGROUNDER of mobile home park owners’ lack of
police power, reflects what amounts to the private act’s attempt to employ the city’s and the
county’s police and governmental powers to collect property taxes for mobile home park owners
from mobile home owners, when, as Bell-Air Village, Inc, makes clear no government tax lien is
involved. A conceptually similar attempt to use a taxing statute to accomplish certain city police
power purposes arose in State ex rel. Polin v. Hill, 547 S.W.2d 916 (1977). There the City of
Gatlinburg refused to issue business licenses to four businessmen whose businesses the city
claimed were in violation of the zoning ordinance and another ordinance that prohibited activities
that interfered with the normal use of adjacent sidewalks [Ordinance 330]. Section 5 of the
latter ordinance provided that:
[A]ny officer or employee of the City of Gatlinburg charged with
the responsibility of issuing privilege licenses is hereby authorized
to refuse to issue a Privilege [sic] license to any applicant when it
is apparent that the contemplated activities under the privilege
license for which application is made involve activities made
unlawful by this ordinance.
The Tennessee Supreme Court held illegal the city’s denial of the businesses licenses,
saying:
Section V of Ordinance 330 cannot be used to deny relators the
right to procure a license required by the Business Tax Act, a state
law of general application. Nor can the zoning ordinance be
enforced by the indirect method employed here. [At 918]
The Court reasoned that under the Business Tax Act the city had only the power with
respect to the issuance of business licenses contained in that Act, that under that Act “the only
condition precedent to the issuance of the license is payment of the tax and no grounds are
provided upon which to predicate a refusal to issue said license,” and that:
February 2, 2009
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Enforcement of these ordinances must be by direct proceedings as
prescribed by law wherein the possession or non-possession of the
privilege license required by T.C.A. 67-5819 is as irrelevant as
compliance or non-compliance with said ordinances are to this
proceeding. [AT 917, 918]
Under Polin, if an applicant tendered the money for a business license, the Business Tax
Act required that the license be issued, and the city could not use any other grounds to deny the
applicant the license.
It is difficult to conceptually separate what went on with the city’s ordinance in Polin
with what is to be attempted by the private act in question: the use of the city’s and the county
police and governmental powers to lock mobile homes in place until the mobile home owner pays
the property taxes on the mobile home, when in all cases the mobile home park owners owe the
property tax under Article II, ' 28, and Tennessee Code Annotated, ' 67-5-802. In reality, both
Polin and in the private act in question involve an attempt by governments to do through the
backdoor what they could not do through the front door.
Another legal problem for the proposed private act is that your City is a home rule city.
Article XI, ' 9, of the Tennessee Constitution provides that with respect to home rule
municipalities, “that the power of taxation of such municipality shall not be enlarged or increased
except by general act of the General Assembly.” Moreover, Article XI, ' 9, also contains an
even broader provision with respect to home rule municipalities: “In the event of [a successful
home rule referendum] such municipality shall be a home rule municipality, and the General
Assembly shall act with respect to such home rule municipality only by laws which are general in
terms and effect.” With regard to your City, the proposed private act probably violates both
those provisions of Article XI, ' 9, by providing that:
The Trustee of the County and the Treasurer of [sic] RecorderTreasurer of the City are hereby empowered and authorized to
issue Permits for the removal and relocation of mobile homes from
mobile home parks situated in their political jurisdictions The
mobile home owner must appear in person [to the county trustee or
the recorder, if in the city] to make application for and obtain the
requisite permit(s), and must at that time pay in full any property
taxes due on the subject mobile home for the current tax year....
As far as I have been able to determine, there has never been a case on the first provision
restricting tax legislation affecting home rule municipalities to the General Assembly. Arguably,
February 2, 2009
Page 7
the provision of Article XI, ' 9, that prohibits the power of taxation from being “enlarged or
increased except by general act of the General Assembly,” was intended to apply only to
increases in the monetary taxing power of home rule municipalities. But the private act in
question plainly gives the city’s treasurer-recorder the power to demand from the mobile home
owner the payment of property taxes on the mobile home as a condition of receiving a moving
permit, and a good argument can be made that a private act that shifts a tax that under the general
law falls upon the mobile home park owner to the mobile home owner also reflects the power of
a home rule municipality being “enlarged or increased,” by private act rather than by general law.
The private act also makes the removal of a mobile home without a valid, properly
displayed permit, a Class C Misdemeanor, which is a criminal offense. Private acts cannot create
criminal offenses. Article XI, ' 9, of the Tennessee Constitution, requires approval of private
acts by referendum of the applicable electorates, or by 2/3 vote of the applicable governing
bodies. The private act in question requires local approval by 2/3 vote of the county and city
governing bodies. But it was held in Jones v. Haynes, 424 S.W.2d 197 (Tenn. 1968), which
involved the validity of a private act that made the offense of selling fireworks a crime only in
Fentress County, that:
It has been the long accepted rule that only the Legislature of this
State may enact criminal laws, and that the efficacy of these acts
cannot be made to hinge upon the outcome of an election, or the
approval of the county court. [At 198] [Earlier citation omitted by
me.]
Likewise, State v. Toole, 457 S.W.2d 269 (Tenn. 1970), involved the question of whether
a general statute That gave cities and counties the authority to regulate and license automobile
graveyards, and to prescribe fines and other punishment for the violations of those regulations.
That statute was unconstitutional, held the court, declaring that:
If, as we held in Jones v. Haynes..., the Legislature cannot enact a
law making the sale of fire-works a crime in Fentress County
alone, because this wold amount to a suspension of the general law
against the inhabitants of that county, it would seem to be an a
fortiori proposition that the legislature cannot delegate to a county
authority to do this in its place and stead. [At 270]
Let me know if I can help you further with this or any other question.
Sincerely,
February 2, 2009
Page 8
Sidney D. Hemsley
Senior Law Consultant
SDH/
.