Can I legally take this stuff? It is mine, right? - Posted by Bill H
Posted by Bill H on July 28, 2007 at 13:38:20:
You certainly opened “Pandora’s Box” and got lots of people nervous and excited. I do not propose to tell you what to do or how to do it. I can however give you what the courts look at as the “Law of Fixtures” …What you do with this informatin is up to you.
Landlords, Tenants, Buyers, Sellers, Agents and FIXTURES!
From time to time I am asked, “What is a fixture, is this a fixture”? I am not an attorney and
do not give legal advice. Good common sense and a look at what is called the law of fixtures
should enable you to determine if it “is” or “is not” a fixture and whether it is included or excluded
in a real estate transaction. Generally when personal property items are bolted, nailed, screwed,
cemented, plastered, etc., or built into the structure or attached to the land it becomes a fixture,
unless it is specifically excluded. The law of fixtures calls out five basic tests to determine if it is a
The Method of attachment. If it permanently attached and cannot be removed without
damaging the building, it is a fixture. Example, a television set can be unplugged and removed
but a roof-top antenna that is bolted or screwed to the roof is included in the sale.
Adaptability for use with the property. When an item is specially built into the structure,
such as a dishwasher or stove, it becomes a fixture. Likewise a portable dishwasher or free
standing range is not.
Intention of the parties. What is the intent of the parties involved. If in a sale, the seller
specifically states, “This dining room chandelier is not included.” and this information is made
known to the buyer before an offer is made, even though it is permanently attached and would be
considered a fixture, it is not included in the sale.
Agreement of the parties. Most real estate contracts spell out what is included and the parties
can agree to this list. Even though some may not be fixtures they are included in the sales price
Relationship of the parties. If the four tests above fail and it goes to litigation and court,
generally the courts will favor (a) buyer over seller, (b) tenant over landlord, and © lender over
Exceptions to the rules. Exceptions to these rules apply to business and trade fixtures and the
owner is allowed to remove business or trade equipment which was permanently attached and the
property (building) is restored to its previous condition.
DISCLAIMER: Use Common Sense: This is not intended to be legal advice and you are
cautioned not to rely upon it as such. For legal advice, consult a real estate attorney.
PLEASE notice Item 5©…courts will favor “Lender over Borrower”…that being said…you do what you feel comfortable with.
All the Best,