The five rules for determining what is a fixture


If a legal dispute arises as to whether a personal property item has become a real property fixture that is included in the property sale, five basic rules are used by courts:

1 -
Method of attachment.  The most important test for determining if an item has become a fixture is its attachment to the land or building.  If it is nailed, bolted, glued, wired, built-in or cemented, then the former personal property has become a fixture.

However, if the item can be easily removed without damage, such as
removing hanging drapes from a drapery rod, unscrewing a light bulb or
unplugging a refrigerator, the seller can remove that personal property (unless the buyer listed it on the purchase contract as being included in the sales price).

Weight of the item is irrelevant.  To illustrate, a heavy above-ground swimming pool is removable personal property unless it is permanently attached to the land.  Wall-to-wall carpet that is nailed, tacked or glued to the floor is included in the sale because it has become a fixture.  Similarly, linoleum tile glued to the floor is part of the structure.  But area rugs that are not permanently
attached to the building are personal property the seller can remove.

Window coverings, unless included by contract, often cause trouble.  The drapery rods, since they are screwed to the wall, must remain because they are permanently attached fixtures.  But drapes are personal property that the seller can remove (unless included in the sales contract). 

2 -
Agreement of the parties.  As explained earlier, the buyer and seller can agree in the purchase contract to include or exclude specific items. 
Everything is negotiable.  But any fixtures the seller wants to exclude must be specifically listed in the sales agreement; otherwise, they are automatically
included.

3 -
Intent of the buyer and seller.  The intent of the buyer and seller often
becomes important in determining if a disputed item is included or excluded.
For example, if the home's multiple listing service (MLS) description says "beautiful Sub-Zero refrigerator matches kitchen cabinets," that indicates the seller intends to include it in the sales price.  Or if the MLS says "new
above-ground swimming pool," that is a strong indication of the seller's intent to leave it for the buyer.

4 -
Adaptability for use with the property.  Items that are specially adapted to the property, such as built-in stereo speakers, are usually considered to be
included fixtures.  However, the stereo equipment that can easily be
unplugged, remains personal property and is not automatically included in the sale.

5 -
Relationship of the parties.  When the buyer and seller cannot resolve their disagreement and litigation becomes necessary, courts usually favor (a) buyer over seller, (b) tenant over landlord, and (c) lender over borrower.

Business trade fixtures are an exception.  When permanently attached items are trade fixtures used in a business, such as restaurant booths, outdoor
business signs, restaurant kitchen equipment and display cabinets, the
business owner is entitled to remove them and restore the premises to its original condition.

Still another exception to the fixture rules occurs when improvements are made to the wrong property.  To illustrate, when a mistaken improver builds a fence on the wrong side of the property boundary, the fence can be removed and the premises restored without liability to the property owner.  For further details on the law of fixtures, please consult a local real estate attorney.