When you’re selling a home it may not always be clear if an item is included in the sale as a fixture. In essence, a fixture is an item that was personal property, but which has become so affixed to the land as to become part of the real property. Since a fixture is part of the real property it is conveyed through the purchase agreement and is transferred to the buyer. However, there is often tension between the buyer and seller as to what qualifies as a fixture. Sellers and their real estate agents naturally lean towards classifying certain items as personal property (swing set, shelving) which can be removed before conveyance of the real property. In contrast, buyers are inclined to classify certain items as fixtures which are part of the real property.
The courts have developed a three part inquiry to determine whether an item is a fixture. First, the method of attachment is examined. Is the item readily removable or permanently affixed to the real estate? Even if it can be removed, does its purpose demonstrate an intent that it be a part of the real property? An item that is permanently affixed, or whose purpose demonstrates an intent that it be part of the real property, will be classified as a fixture. Next, the use of the item is examined. If the item is a natural component to the ordinary use of the real property it is likely a fixture. Lastly, the intention of the party attaching the item is examined. If the party attaching the item intended it to be a fixture there is a strong likelihood that it will be classified as such.
By Adam Garcia.