PREMIUM LEGAL RESOURCES
ASK A LAWYER
An article which was once a chattel but which has now become a part of the real estate because the article is permanently attached to the soil or to something attached to the soil.
All things that are attached to property, such as ceiling lights, awnings, window shades and doorknobs. Fixtures are automatically included in a sale, unless specifically mentioned in the contract as going to the seller.
Personal chattels annexed to land and which may be afterwards severed and removed by the party who has annexed them or his personal representative, against the will of the owner of the freehold.
Questions frequently arise as to whether fixtures are to be considered real estate or a part of the freehold; or whether they are to be treated as personal property. To decide these, it is proper to consider the mode of annexation, the object and customary use of the thing and the character of the contending parties.
The annexation may be actual or constructive;
1st. By actual connexation or annexation is understood every mode by which a chattel can be joined or united to the freehold. The article must not however be laid upon the ground; it must be fastened, fixed or set into the land or into some such erection as is unquestionably a part of the realty. Looks, iron stoves set in brick-work, posts and window blinds, afford examples of actual annexation.
2d. Some things have been held to be parcel of the realty, which are not in a real sense annexed, fixed or fastened to the freehold; for example, deeds or chattels which relate to the title of the, inheritance, go to the heir but loose, movable machinery, not attached nor affixed, which is used in prosecuting any business to which the freehold is adapted, is not considered as part of the real estate, nor as an appurtenance to it. It is also laid down that deer in a park, fish in a pond and doves in a dove-house, go to the heir and not to the executor, being with keys and heir-looms, constructively annexed to the inheritance.
The general rule is, that fixtures once annexed to the freehold, become a part of the realty. But to this rule there are exceptions. These are:
1st. Where there is a manifest intention to use the fixtures in some employment distinct from that of the occupier of the real estate.
2d. Where it has been annexed for the purpose of carrying on a trade but the distinction between fixtures for trade and those for agriculture does not in the United States, seem to have been generally admitted to prevail. The fact that it was put up for the purposes of trade indicates an intention that the thing should not become a part of the freehold. But if there be a clear intention that the thing should be annexed to the realty, its being used for the purposes of trade would not perhaps bring the case within one of the exceptions.
There is a difference as to what fixtures may or may not be removed, as the parties claiming them stand in one relation or another. These classes of persons will be separately considered.
lst. When the question as to fixtures arises between the executor and the heir. The rule, as between these persons has retained much of its original strictness, that the fixtures belong to the real estate or the heir i but if the ancestor manifested an intention, which is to be inferred from circumstances, that the things affixed should be considered as personally, they must be so considered and will belong to the executor.
2d. As between vendor and vendee. The rule is as strict between these persons as between the executor and the heir; and fixtures erected by the vendor for the purpose of trade and manufactures, as pot-ash kettles for manufacturing ashes, pass to the vendee of the land. Between mortgagor and mortgagee, the rule seems to be the same as that between vendor and vendee.
3d. Between devisee and executor. On a devise of real estate, things permanently annexed to the realty at the time of the testator's death, will pass to the devisee. His right to fixtures will be similar, to that of the vendee.
4th. Between landlord and tenant for years. The ancient rule is relaxed and the right of removal of fixtures by the tenant is said to be very extensive. But his right of removal is held to depend rather upon the question whether the estate will be left in the condition in which he took it.
5th. In cases between tenants for life or their executors and the remainder-men or reversioners, the right to sever fixtures seems to be the same as that of the tenant for years. It has been held that the steam engines erected in a colliery, by a tenant for life, should belong to the executor and not go to the remainder-man.
6th. In a case between the landlord and a tenant at will, there seems to be no reason why the same privilege of removing fixtures should not be allowed.
The time for exercising the right of removal of fixtures is a matter of importance. A tenant for years may remove them at any time before he gives up the possession of the premises, although it should be after his term has expired and he is holding over. Tenants for life or at will, having uncertain, interests in the land, may, after the determination of their estates, not occasioned by their own faults, have a reasonable time within which to remove their fixtures. Hence their right to bring an action for them. In case of their death the right passes to their representatives.