Although many fixtures that a tenant installs to a property are treated like regular fixtures—and cannot be removed because they become part of the real property—there are three classes of tenant fixtures that may be removable:
- Trade fixtures
- Agricultural fixtures
- Domestic fixtures
Occasionally, a landlord and tenant—or buyer and seller—may have a dispute about whether an item is a fixture (and part of the real property) or the removable personal property of the owner. If it goes to court, most arbitrators and judges consider four questions in determining the status of the object:
- Agreement. A written agreement would be the most clear-cut evidence of an object's status. If the buyer has any doubts, he or she should specifically itemize assumed fixtures into the real estate sales contract. By the same token, the seller should itemize any fixtures that the seller wishes to exclude and sever from the real property. [Note that real estate typically requires a written agreement to be binding; because fixtures are considered real property, an oral agreement may not be sufficient.]
- Intention. Unless there is a written agreement, the courts must try to ascertain what the parties intended. For example, it would be a good practice for home sellers is to place notes on fixtures such as curtain rods, drapes, ceiling fans and bird baths that the seller intends to take away when moving. Without such explicit notice of intention, the courts will have to try to determine what the seller and buyer intended to do with those items.
- Attachment. The manner and method of attachment goes a long way in determining fixture status. Courts will typically rule that an item is a fixture if it is permanently attached to the real property or if its removal would cause permanent or considerable damage to the real property. For example, a painted mural would cause extreme damage to the building's wall if it were removed.
- Adaptation. Any objects that are customized or adapted for the specific real property are considered fixtures and part of the real property. For example, storm windows and built-in shelving may be removable; but they are normally considered fixtures because they are customized for the real property.
If the courts cannot make a decision based on the preceding four considerations, the established law usually applies the following priorities:
- Buyer over the seller
- Tenant over the landlord
- Lender over the borrower
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