The Intermountain Catholic. (Salt Lake City [Utah] ;) 1899-1920, 1905-07-08
POPULAR TALKS ON LAW.
Landlord and Tenant - Tenants
Riaht to Remove Fixtures.

Under what circumstances may
tenant, who has attached or affixed
something to the real estate during the
term of his tenancy, the right to de
tach it and take it away with him?
In the first place It is an invaria bic
! rule, we believe, that where the flgh'
exists at all it cannot be exercised art
er the tenants term has expired. II
exercised, it must be during his term
or Immediately at it's close. Once the
tenants estate is ended he is in the
position of a stranger and cannot claim
a right to enter for the purpose OF re-
moving fixtures. This, of course. aside
| from any agreement with the landlord
| permitting him so to do. The time for
removal may be extended. Merely being
, in possession does not give the tenant
the right to remove the articles. II
the tenant holds over the term of his
! lease without the consent of his land
/ lord he cannot, after his term expires,
remove the articles. During the
term means during the time when he
| is rightfully In possession
The main difficulty arising out of the
subject is that of determining what is
removable and what is not. Formerly
! anything substantially affixed to the
real estate by, the tenant could not be
| TAKEN away DN MN, the law pres ulll-
! ing that the tenant intended the fixture
| to be a permanent Improvement to the
property. The old law has been SUI
| perseded by statutes and decisions more
! favorable to the tenant as we shall
sec.
There are several tests applied by the
courts in settling questions of this kind
| between landlords and tenants. They
are as follows:
First-Can the thing be removed
without injury to the property? If it
cannot, this goes far in determining the
question in favor of the landlord.
Second-Was it intended by the ten
ant. when affixed, to be a permanent
addition to the property. If it was so
intended. the courts will incline to pre-
vent its removal
Third-Was it annexed for temporary
use of the business of the tenant. to
make the property more convenient for
his own purposes, or for temporary or
nament? If 50, it may in general be
taken away
Aside from any agreement between
the landlord and the tenant (Which.
by the way. should be had if possible,
and this may be written or verbaD, the
foregoing tests will usually settle the
matter.
As to what is a permanent annexing
as intended in the second test aside
from the matter of the intention of the
tenant, it has been said that the mere
tact that thing is nailed, or bolted
or screwed to the floor. walls or cell
ing, does not of itself make the addi-
ton permanent. The intention to make
a permanent or temporary improve
ment must often depend upon and be
inferred from the nature of the article,
the mode of annexing, and the purpose
or use of the article.
An important variation in the gem
eral rule is this: Where the premises
are leased for a particular purpose
known to the landlord. it is presumed
that the landlord assents to the ten
ant putting in any fixtures which are
needed to make the premises suitable
Tor the purpose and removing them on
his going out; but where the premises
are used for purpose other than that
Tor Which they are rented. or for a
purpose not known to the landlord.
such presumption does not exist. This
rule applies not only to shelving, coun-
ters, gas fixtures, etc, but also to en-
gtnes, boilers, machinery, and even
frame buildings.
Again, nurserymen and florists NAV
remove their hothouses. trees. plants.
because they are a part of their stock
IN trade. and presumably the landlord
so understood when he rented, while.
Oh the other hand, a tenant generally
cannot remove trees. bushes. flowers.
etc. though nut in nv
MIN. In general, where the article or
articles annexed are personal in their
nature and are merely accessory to the
business, and have been put in for that
purpose, and not as accessories to the
zeal estate, they belong to and may be
-emoved by the tenant Hence the
stone piers of a railroad bridge were
held in an Ohio case to be the property
u the railroad company removable as
against the owners of the land. A ten
INT mas oeen allowed to take away ket-
les nxed IN mortar, steam engines, |
mills, and even buildings constructed |
or the particular purpose of his husi- |
less. But where the articles annexed |
we're not peculiarly for the benefit of |
ne present business, but were for any |
BUSINESS that might be carried on in |
he belonging to the realty. as slate
n roof, doors, gas pipes, iron sink.
Householders may remove gas fix
ufes, CRATES, shelving. etc, unless so |
lhlXed that when removed they ma
erlally damage the property
IN conclusion, it may be said that if |
ne articIes IN question are annexed |
or the special purpose of Immediate |
profit, and make no necessary mr. cnse
omary appendange to the realty. and |
1 tney can be removed without injury |
o the value of that which remains
hey belong to the tenant. otherwise |
. the owner. This, of course, all aside |
rom any agreement between the mar
ies-William c. Sprague of Sprag,,e |
school of Law. % ~