Fixture ( property law ) - wikipedia Fixture ( property law ) This article is about the legal concept. For other uses, see Fixture ( disambiguation ). This article may not provide balanced geographical coverage on countries other than Australia and Canada. Please improve this article or discuss the issue on the talk page. ( October 2011 ) Property law Part of the common law series Types Real property Personal property Acquisition Gift Adverse possession Deed Conquest Discovery Accession Lost, mislaid, and abandoned property Treasure trove Bailment License Alienation Estates in land Allodial title Fee simple Fee tail Life estate Defeasible estate Future interest remainder Concurrent estate Leasehold estate Condominiums Real estate Conveyancing Bona fide purchaser Torrens title Strata title Deeds registration Estoppel by deed Quitclaim deed Mortgage Equitable conversion Action to quiet title Escheat Future use control Restraint on alienation Rule against perpetuities Rule in Shelley 's Case Doctrine of worthier title Nonpossessory interest Lien Easement Profit Usufruct Covenant Equitable servitude Related topics Fixtures Waste Partition Practicing without a license Property rights Mineral rights Water rights prior appropriation riparian Lateral and subjacent support Assignment Nemo dat Quicquid plantatur Conflict of property laws Blackacre Security deposit Other common law areas Contract law Tort law Wills, trusts and estates Criminal law Evidence A bathroom sink fixture out of order A fixture, as a legal concept, means any physical property that is permanently attached ( fixed ) to real property ( usually land ) Property not affixed to real property is considered chattel property. Fixtures are treated as a part of real property, particularly in the case of a security interest. A classic example of a fixture is a building, which -- in the absence of language to the contrary in a contract of sale -- is considered part of the land itself and not a separate piece of property. Generally speaking the test for deciding whether an article is a fixture or a chattel turns on the purpose of attachment. If the purpose was to enhance the land the article is likely a fixture. If the article was affixed to enhance the use of the chattel itself, the article is likely a chattel. Chattel property is converted into a fixture by the process of attachment. For example, if a piece of lumber sits in a lumber yard it is a chattel. If the same lumber is used to build a fence on the land it becomes a fixture to that real property. In many cases, the determination of whether property is a fixture or a chattel turns on the degree to which the property is attached to the land. For example, this problem arises in the case of a trailer home. In this case the characterization of the home as chattel or realty will depend on how permanently it is attached -- such as whether the trailer has a foundation. The characterization of property as a fixture or as chattel is important. In most jurisdictions, the law respecting the registration of security against debt, or proof that money has been lent on the collateral of property, is different for chattels than it is for real property. For example, in the province of Ontario, Canada, mortgages against real property must be registered in the county or region 's land titles office. However, mortgages against chattels must be registered in the province - wide registry set up under the Personal Property Security Act. In the case of a trailer home, whether it is a fixture or chattel has a bearing on whether a real property mortgage applies to the trailer. For example, most mortgages contain a clause that forbids the borrower from removing or demolishing fixtures on the property, which would lower the value of the security. However, there have been cases where lenders lend money based on the value of the trailer home on the property, where that trailer is later removed from the property. Similarly, a chattel mortgage granted to allow a person to purchase a trailer home could be lost if the trailer is later attached to real property. The law regarding fixtures can also cause many problems with property held under a lease. Fixtures put in place by the tenant belong to the landlord if the tenant is evicted from the property. This is the case even if the fixture could have legally been removed by the tenant while the lease was in good standing. For example, a chandelier hung by the tenant may become the property of the landlord. Although this example is trivial, there have been cases where heavy equipment incorporated into a plant has been deemed to have become fixtures even though it was sold as chattels. Because the value of fixtures often exceeds the value of the land they are affixed to, lawsuits to determine whether a particular item is a chattel or a fixture are common. In one case in Canada, a provincial government argued that a huge earth dam was a chattel, as it was only held in place by gravity and not by any type of affixation ( the claim was rejected ). In a sale of land, fixtures are treated as part of the land, and may not be removed or altered by the seller prior to the transfer of the land. Fixtures are known in civil law as essential parts. Contents 1 Trade fixtures 2 Law in Australia 2.1 Intention of annexation 2.2 Purpose of annexation 2.3 Degree of annexation 2.4 Tenant 's rights of removal 3 See also 4 References Trade fixtures An important exception to the usual treatment of fixtures is the category of trade fixtures ( often called `` chattel '' fixtures ) -- chattels installed by a tenant on leased commercial property specifically for their use in a trade or business. These may always be removed by the tenant, so long as any damage to the structure caused by the removal is repaid or repaired. For example, business signage, display counters, store shelves, liquor bars, and machining equipment are often firmly, if not almost permanently, attached to the building or land. However, they remain personal property and can be removed by the tenant, since they are part of the tenant 's business. The economic logic behind this exception for trade fixtures reckons that if tenants could not remove them, then landlords would bear the responsibility of outfitting their tenants with such equipment and materials. By deduction, therefore, a trade fixture is not a fixture at all. Its name is misleading, since a fixture, by definition, is real property that must remain with the real estate when a seller sells it or a tenant leaves her lease. A trade `` fixture '' is not real property, but personal property of the tenant. The landlord does have some protection. Any damage to the real property caused by the tenant 's removal of trade fixtures must be repaired or paid for by the tenant. If a trade fixture is not removed when the tenant moves out, those trade fixtures become the landlord 's property through the process of accession. For example, if a restaurant goes bankrupt and the owner forgoes his right and the expense of removing all the kitchen equipment, dining booths and other trade fixtures, those trade fixtures become the landlord 's property. In this manner, they will no longer be trade fixtures and can actually become regular fixtures, hence real property. Law in Australia In the absence of agreement between the parties, the doctrine of fixtures, subject to statute, operates to resolve contests concerning title to objects. Whether a chattel by its nature, becomes a fixture by virtue of all the circumstances, surrounding their annexation to land, depends upon ( i ) the purpose and ( ii ) degree of annexation. Semble, it is a mixed question of fact and law, to be determined objectively, the subjective intention being a consideration. Intention of annexation Intention may be ascertained from the annexing party 's relation to the land 's possessor, when the chattel 's use is contemplated, not from the party 's agreement. Objects brought onto land by tenants may become fixtures, and this fact may be a significant determining factor. Purpose of annexation Since Palumberi v Palumberi, greater emphasis has been directed to the purpose of annexation. Each case depends upon its own facts, however a guiding test, is whether a chattel has been fixed with the intention that it shall remain in position ' permanently or for an indefinite or substantial period ', or only for some temporary purpose. Degree of annexation Where the object is not resting by its own weight, this will raise the rebuttable presumption, that the chattel is a fixture. Non-affixed objects may become fixtures especially when they will be used for an extensive period. Further indicators include whether the object can be detached without substantial damage being caused, whether it was fixed for the better enjoyment of the land, or the object itself, the period of time in use and its function, the function served by its annexation, and whether the cost of renewal would exceed the value of the property. Tenant 's rights of removal A tenant 's right of removal does not extend to agricultural fixtures at common law. However, under New South Wales legislation, tenants can remove agricultural fixtures in certain circumstances, subject to landlords ' statutory rights pertaining to fixtures. In most commercial real estate leases, a tenant has the obligation to restore the leasehold improvements back to a base building condition at the expiry of the lease term. See also Quicquid plantatur solo, solo cedit References Jump up ^ Ziff, Bruce ( 2006 ). Principles of Property Law ( 4th ed. ). Toronto : ThomsonCarswell. p. 102. ISBN 0 - 459 - 55339 - 9. Jump up ^ Section 93 of the German Civil Code : `` Section 93 Essential parts of a thing `` Parts of a thing that can not be separated without one or the other being destroyed or undergoing a change of nature ( essential parts ) can not be the subject of separate rights. Jump up ^ Appleby v Myers ( 1867 ) LR 2 CP 651. ^ Jump up to : Hobson v Gorringe ( 1897 ) 1 Ch 182. ^ Jump up to : North Shore Gas Company Limited v Commissioner of Stamp Duties ( NSW ) ( 1940 ) HCA 7, ( 1940 ) 63 CLR 52, High Court ( Australia ). ^ Jump up to : Monti v Barnes ( 1901 ) 1 QB 205, 207 ( A.L. Smith MR ). ^ Jump up to : Reid v Smith ( 1905 ) HCA 54, ( 1905 ) 3 CLR 656, High Court ( Australia ) ^ Jump up to : Leigh v Taylor ( 1902 ) UKHL 1, ( 1902 ) AC 157 at 158 per Lord Halsbury L.C., House of Lords ( UK ). Jump up ^ Lees & Leech Pty Ltd v Commissioner of Taxation ( 1997 ) FCA 404, Federal Court ( Australia ). Jump up ^ Commissioner of State Revenue v Uniqema Pty Ltd ( 2004 ) VSCA 82 at ( 47 ), ( 2004 ) 9 VR 523, Court of Appeal ( Vic, Australia ). ^ Jump up to : Palumberi v Palumberi ( 1986 ) NSW Conv R 55 - 673 ( 13 May 1986 ) Supreme Court ( NSW, Australia ). Jump up ^ Pan United Marine Ltd v Chief Assessor, Singapore ( 2007 ) SGHC 21, High Court ( Singapore ) ^ Jump up to : Compare with Australian Provincial Assurance Co v Coroneo ( 1938 ) NSWStRp 35, ( 1938 ) 38 SR ( NSW ) 700, Supreme Court ( NSW, Australia ). ^ Jump up to : Belgrave Nominees Pty Ltd v Barlin - Scott Airconditioning ( Aust ) Pty Ltd ( 1984 ) VicRp 75, ( 1984 ) VR 947, Supreme Court ( Vic, Australia ). ^ Jump up to : National Australia Bank v Blacker ( 2000 ) FCA 1458, ( 2000 ) 104 FCR 288 ; 179 ALR 97, Federal Court ( Australia ). ^ Jump up to : Holland v Hodgson ( 1872 ) LR 7 CP 328, 334 ( Blackburn J ) Jump up ^ Commissioner for Railways v Valuer - General ( 1973 ) UKPC 3, ( 1974 ) AC 328, Privy Council ( on appeal from NSW ). Jump up ^ Commissioner of Stamps ( WA ) v L Whiteman Limited ( 1940 ) HCA 30, ( 1940 ) 64 CLR 407, High Court ( Australia ). Jump up ^ Compage with Reynolds v Ashby & Son ( 1904 ) UKHL 490, ( 1904 ) AC 461, House of Lords ( UK ). ^ Jump up to : Melluish v BMI ( No 3 ) ( 1996 ) AC 454. Jump up ^ Permanent Trustee Australia Ltd v Esanda Corporation Ltd ( 1991 ) 6 BPR 13,420. ^ Jump up to : Anthony v Commonwealth ( 1973 ) 47 ALJR 83, Text of Judgment ( 26 January 1973 ) High Court ( Australia ). ^ Jump up to : May v Ceedive Pty Limited ( 2006 ) NSWCA 369, Court of Appeal ( NSW, Australia ) Jump up ^ Compare with Ball - Guymer Ltd v Livantes ( 1992 ) 102 FLR 327 ( 21 November 1990 ) Supreme Court ( ACT, Australia ). ^ Jump up to : Reynolds v Ashby & Son ( 1904 ) UKHL 490, ( 1904 ) AC 461, House of Lords ( UK ). Jump up ^ Eastern Nitrogen Ltd v Commissioner of Taxation ( 1999 ) FCA 1539, Federal Court ( Australia ). Jump up ^ Eon Metals NL v Commissioner of State Taxation ( WA ) ( 1991 ) WASC 411, ( 1991 ) 22 ATR 601, Supreme Court ( WA, Australia ). Jump up ^ Mitchell v McNeil ( 1909 ) WALawRp 27, ( 1909 ) 11 WALR 153, Supreme Court ( WA, Australia ). Jump up ^ Jiwira v Primary Industry of Bank Authority ( 2000 ) NSWSC 1094, Supreme Court ( NSW, Australia ). ^ Jump up to : NH Dunn Pty Ltd v LM Ericsson Pty Ltd ( 1980 ) ANZ Conv R 300 ; ( 1979 ) 2 BPR 9241 ( 6 December 1979 ) Supreme Court ( NSW, Australia ) Jump up ^ Vaudeville Electric Cinema Ltd v Muriset ( 1923 ) 2 Ch 74. Jump up ^ Australian Provincial Assurance Co v Coroneo ( 1938 ) NSWStRp 35, ( 1938 ) 38 SR ( NSW ) 700, Supreme Court ( NSW, Australia ). Jump up ^ Wiltshear v Cottrell ( 1853 ) 1 E & B 674. Jump up ^ Australian Joint Stock Bank v Colonial Finance Mortgage, Investment & Guarantee Corporation ( 1894 ) NSWLawRp 124, ( 1894 ) 15 LR ( NSW ) 464, Supreme Court ( NSW, Australia ). Jump up ^ Attorney - General ( Cth ) v RT Co Pty Ltd ( No. 2 ) ( 1957 ) HCA 29, ( 1957 ) 97 CLR 146, High Court ( Australia ). Jump up ^ Re Starline Furniture Pty Ltd ( In Liq ) ( 1982 ) 6 ACLR 312 ( 1 January 1982 ) Supreme Court ( Tas, Australia ). ^ Jump up to : FCT v Metal Manufacturers Ltd ( 2001 ) FCA 365, ( 2001 ) 108 FCR 150 ; 46 ATR 497, Federal Court ( Australia ). ^ Jump up to : Interconnected items of plant and equipment used as a milk processing plant in a dairy business were held to be fixtures in National Dairies WA Ltd v Commissioner of State Revenue ( 2011 ) WASCA 112, ( 2001 ) 24 WAR 70, Court of Appeal ( WA, Australia ). Jump up ^ Hellawell v Eastwood ( 1851 ) 6 Ex 295 Jump up ^ Spyer v Phillipson ( 1931 ) 2 Ch 183 Jump up ^ Adams v Medhurst & Sons Pty Ltd ( 1929 ) TASLawRp 7, ( 1929 ) 24 Tas LR 48, Supreme Court ( Tas, Australia ). Jump up ^ Re Cancer Care Institute of Australia Pty Ltd ( 2013 ) NSWSC 37, Supreme Court ( NSW, Australia ). Jump up ^ Climie v Wood ( 1868 ) LR 3 Ex 257. Jump up ^ Elwes v Maw ( 1802 ) 3 East 38. Jump up ^ Agricultural Tenancies Act 1990 ( NSW ). Jump up ^ `` How to : Make good at the end of your lease ''. realcommercial.com.au. Retrieved 1 October 2017. Retrieved from `` https://en.wikipedia.org/w/index.php?title=Fixture_(property_law)&oldid=803189050 '' Categories : Property law Real property law Hidden categories : Articles with limited geographic scope from October 2011 Talk Contents About Wikipedia 한국어 Edit links This page was last edited on 1 October 2017, at 01 : 29 ( UTC ). Text is available under the Creative Commons Attribution - ShareAlike License ; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia ® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization. About Wikipedia

Question: the tenant may remove trade fixtures that have been affixed to a building if
Answer: any damage to the structure caused by the removal is repaid or repaired