removable flagpole - permanant fixture? - Posted by Michele Alati

Posted by Boyd (MA) on September 16, 2003 at 18:53:58:

“Amateurs built the Ark, Professionals built the Titanic.”

That’s excellent, never heard that one before.

Boyd (MA)

removable flagpole - permanant fixture? - Posted by Michele Alati

Posted by Michele Alati on September 11, 2003 at 14:53:29:

My husband and I have just moved and are being sued by the buyers because we took our flagpole that was not cemented in the ground but inserted into a sleeve so that it could easily be removed. Are we liable? They want a check for compensation.

Re: removable flagpole - permanant fixture? - Posted by Bill H

Posted by Bill H on September 11, 2003 at 15:58:17:

Michelle: I am not an attorney and do not propose to give legal advice. However that said here is what I have learned over the years about fixtures, etc:.

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 fixture:

  1. 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.

  2. 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.

  3. 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.

  4. 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 and sale.

  5. 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
    borrower.

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.

*** WORD OF ADVICE AND TRUTH: “Am I doing the right
thing the right way?” Relax:

“Amateurs built the Ark, Professionals built the Titanic.”

Hope this helps,

Good Luck,

Bill H