Fixtures of Real Estate

In determining whether or not an object is considered to be part of the land, we apply what are called the five tests of a fixture. They are:

Ø      The manner of attachment

Ø      The adaptation of the object

Ø      The intent of the person affixing the object

Ø      The relationship of the parties involved:

Ø      The existence of an agreement:

1. The manner of attachment: The first test, manner of attachment, refers to how the object is attached to the land. To illustrate, when asphalt and concrete for driveways and sidewalks are still on the delivery truck, they are movable and therefore personal property. But once they are fixed into place, the asphalt and concrete become part of the land. Similarly pipes, doors, toilets, water heaters and other structure/construction materials change from personal property to real estate-when they become part of a building. Items brought into the house that do not become permanently affixed to the land. For example-furniture, clothing, cooking utensils, radios, television etc. remains personal property.  


2. The adaptation of the object: Storm windows are temporally clipped or having in position for a few months of the year. If the storm windows were custom/regular, they are automatically included in the purchase or rental of the building. Storm windows of a general design and suitable for use on other buildings are personal property and are not automatically included with the building.


3. Intend and relationship: It is sometimes necessary to consider the intent and relationship of the parties involved in order to classify an object as real or personal. Normally when tenant makes permanent additions to the property that he is renting, the additions belong to the landlord when the lease or rental agreement expires. When applied to different situations-the test of intent and relationship can bring different results. For example, consider a refrigerator and a window, air conditioner, neither of which is permanently attached. If a tenant rents a house or apartment and installs there items, the tenant may remove them. Upon departing because they are not permanently attached and therefore are personal property.


4. The existence of an agreement: The final test is the existence of an agreement between the parties involved. For example, a seller can clarify in advance and in writing to his real estate broker what he considers personal property and thus will take when he leaves and what he does not consider personal property and thus will leave for the buyer. Likewise, a tenant may obtain an agreement from his land lord that items installed by the tenant will not be considered fixtures by the landlord. When it is not readily clear if an item is real or personal property, the use of an agreement can avoid later agreement or a court case.