Request By:
Honorable Carl F. Smoak, Deputy Commissioner
Department of Housing, Buildings
and Construction
The 127-South Building
U.S. 127-South
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Nancy M. Collins, Assistant Attorney General
This is in response to your request for an opinion on whether the State Fire Marshal, as Chairman of the Mobile Home and Recreational Vehicle Certification and Licensure Boards, can or should require the licensing of real estate brokers or salesmen engaged in the advertising and selling of mobile homes and recreational vehicles which are not affixed to real property. Our response to your question is a qualified yes.
KRS 227.620(1), dealing with mobile homes and recreational vehicles, provides that "no dealer shall engage in business as such in this state without a license therefore as provided in KRS 227.550 to 227.660." A "dealer" is defined in KRS 227.550(5) a "any person, other than a manufacturer, as defined herein, firm or corporation, who sells or offers for sale three (3) or more mobile homes or recreational vehicles in any consecutive twelve (12) month period."
In Kentucky, a person engaged as a business in the purchase, sale, exchange, rental, etc. of real estate for others must be licensed by the Kentucky Real Estate Commission. KRS 324.010; KRS 324.020. "Real estate" is defined in KRS 324.010(1)(e) to include leaseholds and other interests less than leaseholds. "Real estate" also includes "lands, tenements and hereditaments and all rights thereto and interests therein, other than a chattel interest." KRS 446.010(18).
Real estate brokers and salesmen are regulated by the Kentucky Real Estate Commission and are licensed to sell real estate. We do not believe that the General Assembly intended to require multiple licensure for brokers and salesmen engaged in the business of buying and selling "real estate. " Thus, the answer to your question turns on whether the mobile home or recreational vehicle is considered real estate or personal property.
For taxation purposes, a mobile home is considered real estate "if the wheels or mobile parts have been removed from (it) and the unit rests on a permanent, fixed foundation." KRS 132.750. The permanent foundation must be fixed upon the surface of the land. KRS 132.720(4). This is consistent with the usual rule that a permanent structure is considered a part of the real estate. Columbia Gas of Kentucky, Inc. v. Maynard, Ky., 532 S.W.2d 3 (1975).
If a mobile home or recreational vehicle permanently fixed to the land is considered part of the real estate, it follows that one which is not permanently fixed to the land, or has been or will be severed from the land, is no longer considered real estate but personal property. Columbia Gas of Kentucky, Inc. v. Maynard, supra.
The license granted a broker or salesman by the Kentucky Real Estate Commission does not extend to sales of personal property. KRS 446.010(18), KRS 324.010(1)(e). The broker or salesman selling a mobile home or recreational vehicle as "personal property, " i.e., not permanently affixed to the land, is acting outside the scope of his real estate license and would therefore be subject to licensure by the appropriate regulatory agency. If the broker or salesman sells or offers for sale three or more mobile homes or recreational vehicles within a twelve-month period, he may then be considered a "dealer" and must be licensed by either the Mobile Home Certification and Licensure Board or the Recreational Vehicle Certification and Licensure Board. KRS 227.550 et seq.
In summary, a real estate broker or salesman who sells a mobile home or recreational vehicle not permanently affixed to real property is subject to licensure by either the Mobile Home Certification and Licensure Board or the Recreational Vehicle Certification and Licensure Board, provided he sells or offers to sell three or more such mobile homes or recreational vehicles within a twelve-month period.