Request By:
Don Campbell
Attorney at Law
Department of Banking and Securities
Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
Pursuant to a request received by the Department of Banking and Securities, the Department has asked that this office render an opinion on whether mobile homes may be financed under the Motor Vehicle Retail Installment Sales Act, KRS 190.090 et seq. , or the Installment Sales Contracts Act, KRS 371.210 et seq. , if either. The party requesting your opinion pointed out that due to seemingly conflicting definitions, the financing of stationary mobile homes is not covered by either act. In fact, there is no conflict in the definition, and the stationary mobile home is to be financed under the provisions of the Motor Vehicle Retail Installment Sales Act where the cash price is $5,000 or less, and under the Installment Sales Act where the cash price of the mobile home exceeds $5,000.
What you are calling a stationary mobile home is more particularly defined, for the purpose of the Consumer Protection Act, in KRS 367.710(5) as follows:
"Mobile home" means a structure, transportable in one or more sections which is eight (8) body feet or more in width and is thirty-two (32) body feet or more in length, and which is built on a permanent chasis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities and includes the plumbing, heating, air-conditioning, and electrical systems contained therein."
Mobile homes, as thus defined, are considered motor vehicles pursuant to the definition of "housetrailers" set out in KRS 186.650(3), but are exempt from the motor vehicle registration laws of this state solely because they have a foundation other than wheels or jacks and/or are being used in one location as a dwelling.
In KRS 190.090(4) a motor vehicle is defined for the purpose of the Motor Vehicle Retail Installment Sale as being:
". . . any device with a cash sale price of five thousand dollars ($5,000) or less, in, upon, or by which any person or property is, or may be transported or drawn upon the highway. The term does not include self-propelled wheelchairs . . . tractors . . . road machinery, implements of husbandry and other agricultural machinery, or other machinery not designed primarily for highway transportation but which may incidentally transport persons or property upon the highway. . . ." [Emphasis Added.]
By virtue of its construction, the mobile home may be drawn upon the highway and may therefore transport property upon the highway even though this is not its primary purpose. Thus, a mobile home falls within the broad definition of motor vehicles. The question then remains, "is a mobile home excluded from that definition by any of the exceptions set out in the second sentence of the subsection?"
This office is of the opinion that mobile homes do not fall within any of the exclusions. The only possible exemption which might cover mobile homes is "or other machinery which is not designed primarily for highway [use] . . .". However, the term "machinery" as used in that sentence, refers to self-propelled devices or to devices such as farm wagons or road construction transports which are designed primarily for hauling material from one place to another in off-the-road locations. Mobile homes are not designated as machinery in any of the various definitions of that item set out throughout the statutes. See for instance, KRS 367.710, KRS 186.650, KRS 132.730, KRS 219.320. Neither are they thought of as machinery as that term is defined in lexical usage. Accordingly, this office is of the opinion that mobile homes are not machines, and are not excluded from the definition of motor vehicles as set out in the first sentence of the subsection. Therefore, this office is of the opinion that if the cash price of a stationary mobile home, is $5,000 or less, the mobile home may be financed under the provisions of KRS 190.090 et seq.
Turning to the second question, then, we must determine whether the provisions of the Installment Sales Contracts Act, KRS 371.210 et seq. , apply when financing mobile homes whose cash price exceeds $5,000. The provisions of that act apply to:
". . . all tangible chattels personal when purchased primarily for personal, family or household use . . . but not including motor vehicles as herein defined. . . ." KRS 371.210(1).
The definition of motor vehicles under KRS 371.210(3) includes in part:
". . . any . . . mobile home . . . designed and used primarily to transport persons or property upon a public highway. . . ." [Emphasis Added].
It should be noted that under KRS 219.230 the definition of mobile homes covers not only the stationary mobile home as defined in KRS 367.710, but also those vehicles such as the Winnebago, which are often commonly described as "motor homes" and which are designed primarily for temporary occupation while traveling. Thus, though the legislature included "mobile homes" within the list of motor vehicles, it limited the application of that term to those types of mobile homes which are primarily used upon the highway. KRS 371.210(3) was intended to exclude from the Act only the "motor home" and Winnebago types of vehicles, not the stationary type of mobile home which is designed and used primarily in one location as a permanent dwelling.
Therefore, this office is of the opinion that a stationary mobile home, or a mobile home which fits the definition set out in KRS 367.710, is not excluded from the scope of KRS 371.210 et seq. by reason of KRS 371.210(1) and (3). Consequently, the Installment Sales Contracts Act, KRS 371.210 et seq. does apply to the financing of such mobile homes where the cash price thereof exceeds $5,000.
In summary, then, where the cash sale price of a stationary mobile home is $5,000 or less, the provisions of KRS 190.090 et seq. apply. Where the cash price of stationary mobile homes exceeds $5,000, the provisions of KRS 371.210 apply.