July 22nd, 2014
Questions often arise regarding ownership of property that becomes “fixed” or “attached” to a part of real property. Particularly in today’s times, property owners want to install high-speed cable modem boxes, additional communications wiring, wall store devices, wine cellars, exercise equipment and more, and then take them away when they sell.
Is there any clear cut definition of a “fixture”? An early Nebraska Court stated that “fixtures are in the twilight zone between things real and things personal”.
Thus, the simple answer is that there is no clear cut answer. Different court opinions have issued different – and other conflicting – opinions as to what is a fixture.
In layman’s terms, I think we can all agree that a fixture is something which initially was not attached to real property – such as an air conditioning window unit, or a wet bar which was installed in a house after it was built.
Legal issues arise. The seller moves out and takes his personal belongings, including those which he had previously attached to the property and the home purchaser discovers only after settlement that the seller has removed them. If it is a fixture, it stays with the property.
Thus, we get litigation. According to a 1982 DC Court of Appeals case, “in this jurisdiction, when determining whether an article is a fixture, the court may consider three factors:(1) actual annexation, according to the nature and use of the article;(2) its adaptation to the use for which it was annexed, and (3) the intention that it should be a permanent accession to the realty.”
That’s clear as mud!
Let’s look at some typical issues. In each case, the item was installed by the property owner seller.
a lamp fixture attached to a ceiling electrical box above the dining room table?
In this situation, so long as the fixture can be removed without damage to the ceiling – and the seller installs a substitute fixture and makes sure there are no open electrical wires which could cause a fire or injury to a person – I believe that can be removed;
a piece of framed art attached to a wall. Once again, so long as the artwork can be removed – and any holes in the wall restored – this can be removed;
a wet bar that is affixed to the wall. Here, I would draw the line and call his a fixture which must stay in the house.
The list can – and does – go on. But there is a lesson to be learned, namely: put everything in writing. If you are buying a home, and there is an item which you want to remain there, spell this out specifically in the sales contract. For example: “the wall racks installed in the garage shall convey”. Alternatively, if you are a seller, and there are items which you want to remove, make that clear in the sales contract; i.e. “The wall racks installed in the garage do not convey.” As for the lamp fixture referenced above, the buyer may have thought it was a fixture and thus should have stayed in the house. This is exactly the kind of issue that is best resolved in the real estate contract.
The analysis of fixtures applies equally to landlord-tenant issues. From my experience, when there is litigation, typically the buyer or the tenant will win. That’s because the seller or the landlord could have made their intentions clear in the written contract or lease.
One additional note of interest. Custom and practice in a local community is often forgotten or ignored. For example, it is my understanding that when you sell a house in California, it is customary that the refrigerator does not convey. Thus, I have encountered people coming from the West Coast to purchase real estate here finding they have two refrigerators, while people going out to California find that they have no refrigerator in the new house they have purchased. Talk with your local real estate agent and your attorney to make sure you fully understand these local customs. But, in the final analysis, a written document is the best protection.