dissenting. I dissent for two reasons. First, the majority has not given due deference to the chancellor’s findings of fact. Second, the State of Arkansas should not be allowed to treat mobile homes or manufactured homes as real property for some tax purposes and personal property for other tax purposes.
The chancellor’s findings of fact focused on the third prong of the test set out in the McIlroy Bank & Trust and Corning Bank cases, i.e., whether the party annexing property to land intended to make it permanent. The overwhelming majority of evidence points to the conclusion that the appellees had every intention of keeping their homes permanently affixed to the land in the Rolling Meadows Mobile Home Park. As the chancellor noted in his order, the appellees “purchased their homes already affixed and have maintained them in place as purchased.” He also noted that “not one of these parties has testified to any intent to move their home.” The majority seems to equate the appellees’ right to move their homes with the intention to move their homes. If that is the case, no mobile home or manufactured housing on leased land will ever be characterized as anything other than personal property, despite the owner’s actual intention. The majority also ignores the evidence in support of the chancellor’s finding that:
each of the homes in this litigation have long lost their character as transportable as there are no tow tongues, axles or wheels on any of the homes, and they have all been placed in concrete or concrete block foundations with underground utilities and extensive structural modifications including roofs, patios, enclosed porches, carports and room additions, which are firmly affixed to the land by concrete, post and pillar, or similarly anchored.
The question of intent is one which is particularly in the realm of the fact-finder to resolve. Findings of fact should be affirmed unless clearly erroneous. ARCP 52(a).
My second problem with the majority holding is that the characterization of mobile homes or manufactured housing as “tangible personal property” is at odds with other Arkansas tax laws. For the purpose of ad valorem taxes, such homes permanently affixed on land which is owned or leased by the homeowner are deemed real property. Ark. Code Ann. § 26-3-203(a)(l) (Repl. 1992). At the hearing before the chancellor, Baxter County Appraiser Lee Farrier testified that the appellees homes were carried on the real-estate property cards and assessed as improvements on the real estate. The appellees now end up with the worst of both worlds. Their perma-nendy affixed mobile homes are subject to real-property taxes as improvements to real estate and also subject to sales tax as personal property. It should not be both.
The discrepancy also shows up in the real-estate-transfer tax. The tax is imposed on deeds, instruments, or writings by which lands tenements or other realty is sold. Ark. Code Ann. § 26-60-105(a) (Supp. 1995). One of the homeowners, Mildred Jett, testified at trial that she paid such a tax on the purchase of her home.
Finally, the majority opinion is at odds with the general definitions contained in Ark. Code Ann. § 26-1-101 (Repl. 1992). That code section defines real property as:
not only the land itself, whether laid out in town lots or otherwise, with all things therein contained, but also all buildings, structures, improvements and other fixtures of whatever kind thereon and all rights and privileges belonging or in anywise appertaining thereto.
Personal property is defined as:
Every tangible thing being the subject of ownership, whether animate or inanimate, other than money, and not forming a part of any parcel of real property as defined.
I believe consistency requires a holding that, under the facts of this case, the appellees’ homes are not personal property but are realty, in the sense that they are fixtures or improvements. I respectfully dissent from the majority opinion.