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To determine whether or not an item is a fixture or personal property depends on the distinction between real and personal property. It also depends on the intention of the item when it was installed. If Eve and Frank installed the fence around their warehouse for security purposes, then a court would most likely rule that the fence is a fixture and not mere personal property.
Real property is defined as land and anything attached to the land by its roots, such as all vegetation and even buildings. Personal property is defined as any property that is not real or, in other words, any property that can be moved because it is not attached to the land. Personal property includes "furniture, cash, and vehicles" (Sharon L. Morris, "What Kind of Property are They?," Probate & Property Magazine, Sept./Oct., 2010, p. 61).
A fixture is defined as personal property that has been attached to the land. Plus, generally speaking, once fixtures are attached to land, they are thought of as real property. Attorney Morris informs us that Black's Law Dictionary 713 (9th ed. 2009) identifies a fixture as "personal property that is attached to land or a building and that is regarded as an irremovable part of the real property, such as a fireplace built into a home" (as cited in Morris, p. 61). Morris further gives us the example that brick layering "becomes such a part of real estate that it cannot be separated without causing damage to the real estate" (p. 61).
Most states use three criteria for establishing if something is a fixture or not: (1) It must be attached to the land; (2) it must be adapted for the specific use of the land; and (3) it must become a permanent part of the land for the duration of those who hold the land. Hence, intended use of the item with respect to the property is the primary factor used to determine if an item is a fixture or not.
Morris gives us the decision of ATC Partnership v. Town of Windham, 854 A.2d 389 (Conn. 2004) as an example of a decision concerning fixtures. A plaintiff had bought a facility used as a textile mill with the purpose of redeveloping the facility for a different purpose, but the facility was soon seized by the town of Windham as condemned property. The plaintiff then tried to reclaim the machinery and equipment that was bolted down to the property and used when it was still an operating textile mill, arguing that it was personal property since the plaintiff did not intend to use the items once the property was redeveloped, making the items no longer count as fixtures. While it was a tricky case, the court eventually ruled that since the items were fixtures at the time the property was used as a textile mill, they should still be treated as fixtures, regardless of the plaintiff's intentions for the items (p. 62).
Hence, if Eve and Frank had installed the fence around the warehouse for some specific purpose related to the warehouse, such as for security purposes, then a court would similarly rule the fence is a fixture.
As a legal term, a fixture is defined as any physical property which is attached permanently to real property, such as land; further, the removal of this fixture would permanently damage the real property. In the determination if the fence is a fixture or chattel, the decision must be made as to whether or not the fence in dug into land that is part of the surveyed twenty acres and does not extend over the boundaries at all so that it is included in the deed, and whether the removal of this fence would permanently damage the real property. If its removal does not affect the real property (the ground), then it is not a fixture, but is chattel.
And if Eve and Frank are not sure about the ownership of the fence, they can phone the land office and inquire about the fence. Fences may be personal property or real property; the determination depends upon the fence's attachment to the land, and upon the owner's intentions. Often decisions about fences end in court.
In determining Property Law, 9/10ths of the decision on whether the fence is considered a fixture or not is based upon the attachment of the fence. If there are nails, bolts, cement, or glue indicating permanence it meets the first test of being a fixture. The second question that must be met is whether the item can be removed without damage to the property, such as curtains or a urn on the front porch. If it can be removed without damaging the existing property it does not meet the requirement to be considered a fixture. If the fence posts were set in with cement, as is the custom, then they meet the first condition. Since the posts could not be removed without damaging the property, it meets the second condition.
The other tenth of the decision regarding the property is based upon Purpose and Intent: if the fence was put in place to specifically surround the property in order to keep things in or other people out, it is classified as a fixture. This question also falls within the scope of Intent: unless there are clear markings or indications that the fence is of personal value, as with a decorative bench on the front porch with all of the children's names on it, it cannot be removed by the owner without specifically stipulating it in the sales contract agreement. Of course, if the bench is free standing and not bolted to the porch it would not be considered a fixture in the first place. However, if it were bolted, it would be in the best interest of the seller to notify the buyer of the bench's personal value and the intent to remove it in order to be in favor of the law.
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