Fixtures belong to the owner of the real estate unless contract specifies otherwise
0September 6, 2024 by Tom Roberts, Esq.
Who owns fixtures attached to the real estate by the tenant?
Absent a lease or contract provision to the contrary, fixtures, attached to the real estate belong to the owner of the real estate.
What is a fixture?
There is not a single precise rule to determine whether an article used in connection with realty is a fixture or not. Each case is decided according to the particular facts and circumstances. Certain general rules to determine the question, however, have been adopted by the great majority of our courts.*1
“Fixtures belong to that class of property which stands on the boundary line between the two grand divisions of things real and things personal, into which the law has classified property. In its ordinary signification the term ‘fixture’ is expressive of the act of annexation; it necessarily implies something having a possible existence apart from realty, but which may, by annexation, be assimilated into realty, and denotes the change which has occurred in the nature and legal incidents of the property. They partake of the character, incidents, and properties of realty, and belong, in the ordinary case at least, to the person or persons owning the land; and * * * ordinarily may not be severed and removed without the consent of the owner.” *2
3 Tests:
(1) Annexation of the chattel to the realty, actual or constructive;
(2) Its adaptation to the use or purpose to which that part of the realty to which it is connected is appropriated;
(3) The intention of the owner of the chattel to make it a permanent addition to the freehold.
The intention of the party making the annexation is the paramount and controlling consideration. The test of intention is given a broad signification. It does not imply a secret, undisclosed action of the mind of the owner of the property. The intention need not be expressed in words; it may be inferred from the nature of the article affixed, the purpose for which it was affixed, the relationship of the party making the annexation and the structure and mode of annexation. 22 Am. Jur., Fixtures, section 6; 26 C.J., Fixtures, sections 2 and 3; 11 R.C.L., Fixtures, section 6.
“This test — the intention of the party making the annexation — is made the controlling criterion by most of the authorities, and generally it is considered to be the chief test. It is not always determinative, but in cases of doubt it has a controlling influence and must be considered. However, in order that a chattel may be converted into a fixture, the intention to make it a permanent accession to the realty must affirmatively and plainly appear; if the matter is left in doubt and uncertainty, the legal qualities of the article are not changed, and it must be deemed a chattel.”*3
TRADE FIXTURES -
If an article is a trade fixture and is not removed from the premises within the term or time specified in the lease, it becomes a part of the realty and title thereto vests in the lessor. If personal property placed on the leased premises by the lessee is not a trade fixture, and is not attached to the realty, failure to remove it within the time specified in the lease does not ipso facto divest the lessee of his title.
CONTRACT TO AVOID CONFUSION!!
It is well settled that by agreement the parties may fix the character and control the disposition of property, which in the absence of such a contract, would be held to be a fixture, where no absurdity or general inconvenience would result from the transaction. Bolin v. Laderberg, 207 Va. 795, 800, 153 S.E.2d 251, 255; Tunis Co. v. Dennis Co., 97 Va. 682, 686, 34 S.E. 613, 614. The real test is whether the item falls within the contractual classification preventing or permitting removal. Bolin v. Laderberg, supra, 207 Va. at 801, 153 S.E.2d at 255.
Sharlin v. Neighborhood Theatre, Inc., 209 Va. 718, 722
Tidbits:
In a case where California Medicaid would not pay for fixtures, the question posed was whether, for purposes of Medicaid, a stairway chair lift should be considered a fixture or durable medical equipment which must be covered by statute, and which cannot be excluded by regulation. The court rejected the Departments contention that they were fixtures and found them to be covered durable medical equipment for purposes of Medicaid. The case is not dispositive of whether or not a stairway chair lift is a fixture when used in a trade or business, or affixed to the real estate without the consent of the owner of the realty.
Blue v. Bonta, 2002 Cal. Super. LEXIS 782, *21-22 (2002)
End Notes:
1 – Mullins v. Sturgill, 192 Va. 653, 658 (1951).
2 – 36 C.J.S., Fixtures, Sec. 1, p. 891 cited with approval by Mullins, supra
3 – 22 Am. Jur., Fixtures, Sec. 6, p. 719 cited with approval by Mullins, supra
Disclaimer
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
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