The Legal Issues Surrounding This Exploding Housing Market

Tiny Homes, Big Questions

By Jeffrey L. Adams

Jeffrey Adams

Jeffrey Adams

Tiny homes are efficient, cost-effective, and environmentally friendly. Generally speaking, tiny homes are defined as residential dwelling units measuring 400 square feet or smaller. As a result of their benefits, tiny homes are soaring in popularity both locally and nationally.

With a blossoming tiny-house market, however, comes increasing uncertainty due to the vast landscape of complicated legal issues facing prospective owners of such homes. This article is not designed to be an exhaustive list of every imaginable legal issue facing a prospective tiny-home owner. As outlined below, there are a wide array of potential issues facing the building or purchasing of a tiny home. Some of those issues may apply to the building of a tiny home, some to the purchasing of a tiny home, and many others to both construction and sale.

The first concern prospective tiny-home owners must contemplate is whether the purchase and sale of their tiny home is governed by common contract law or the Uniform Commercial Code. Tiny homes are commonly built on either a foundation or a trailer. This distinction dictates which law applies. Article two of the Uniform Commercial Code governs the sale of “goods” that includes “all things … which are movable at the time of identification to the contract of sale.” Accordingly, if your tiny home is built on a trailer, it is “movable” at the time of identification of the contract and governed by the Uniform Commercial Code. Any tiny home, however, built on a foundation will be governed by common contract law, similar to most residential homes. It is imperative to determine which law applies prior to entering into a contract to ensure a smooth purchase or sale of your tiny home.

The next issue for prospective owners is whether the land on which you intend to place your tiny home is zoned for such use. Massachusetts General Laws c. 40A permits local governments to enact zoning ordinances and bylaws which regulate how landowners may use their lands. Currently, Nantucket is the only municipality in the Commonwealth that has permitted tiny homes to be placed legally on land that already includes one residential dwelling. Unfortunately, most municipalities are likely to restrict residentially zoned plots to one dwelling, which will present significant legal issues for tiny-home owners seeking to place their homes legally.

One way tiny-home owners nationally are trying to circumvent such zoning restrictions is through a request to their local government permitting a tiny home as an accessory dwelling unit (ADU). This is a clever mechanism that permits a second dwelling on a zoned plot; however, municipalities tend to enact such bylaws only where the second dwelling is attached to the primary residence. The legislative purpose of permitting ADUs is to create a cost-effective alternative for the elderly. Therefore, many municipalities may be hesitant to allow tiny homes as ADUs where such homes are not connected to the principal residence.

In addition to the Zoning Act, tiny-home owners must be cognizant of the building code, which regulates how one may build their tiny home. See 780 Code Mass. Regs 1.00, et. seq., and model regulations cited. The building code is enforced by the state, and any local zoning ordinance or bylaw may not interfere with the implementation of the building code.

The building code poses yet another challenge for prospective owners. The state requires that the code govern the building of any residential dwelling used for the permanent provisions of living, sleeping, eating, cooking, and sanitation. Accordingly, prospective owners, especially those building their own home, must comply with the building code.

Finally, prospective owners must adhere to the Department of Public Health’s regulations regarding dwellings that are fit for human habitation. See 105 Code Mass. Regs. 410.000, et. seq. For example, the regulations require that every dwelling unit must contain at least 150 square feet of floor space for one occupant, and 100 square feet of floor space for each additional occupant. These numbers may be difficult to achieve for prospective owners, especially families with the intent of going tiny.

The laws and regulations governing tiny homes, as currently constituted, were written and implemented by principally considering the purchase and sale of residential dwellings that were affixed to a foundation and were large enough to comply with all of the state’s building and health requirements. Tiny homes pose a challenge, not only to the prospective owners of such homes, but also to our local and state governments.

Ultimately, a primary tiny-home market will erupt once a secondary market forms for such homes; however, this impending growth will not occur if our local and state governments do not adapt. Perhaps the proper method to govern tiny homes is by subjecting such homes to the same laws and regulations in place for recreational vehicles and mobile homes, rather than creating a new, complicated framework of laws specifically designed for tiny homes.

One thing is certain: tiny homes present enormous potential rewards for sustainable, economic living that can help ease the dearth for affordable housing. The question remains: will our laws dictate such an outcome?

Jeffrey L. Adams is an associate with Robinson Donovan, P.C., where he concentrates his practice on litigation; (413) 732-2301; jadams@robinsondonovan.com

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