Fixtures and Appurtenances

To determine whether property is real property (a fixture) or personal property, the courts have developed the five following tests:

1. Method of Attachment (or Annexation) - How the item is attached to the property (a window air-conditioner (personal) vs. a central air conditioning Chapter (appurtenance).
2. Adaptability - A microwave oven that is "built in" vs. a microwave that simply sits on a kitchen counter. If an item is well adapted, then it is likely to be considered a fixture.
3. Relationship of parties - If a tenant installs a fixture in order to conduct business, the fixture may be considered a trade fixture,  which is the tenant's personal property. For example, if you lease a location for an ice cream store, and you install freezers to keep the ice cream cold, they are trade fixtures, and you could remove them upon the expiration of a lease. If you do not take them by lease expiration, they become the property of the landlord. Sale or lease contract provisions. In a sale or lease transaction, the listing of an item in the contract as a personal property item or a fixture overrides all other considerations. Unless otherwise stated as exceptions, all fixtures are included in the sale. For example, if a sale contract stipulates that the attached carpeting is not included in the sale, it becomes a personal property item. If the carpeting is not mentioned, it would stay with the property, since it is attached to the floor of the building.
4. Intent of the parties - When an owner installs a ceiling fan it is assumed that it is appurtenant to the property and transfers to the buyer. It is important that real estate agents write into the offer (made by the buyer) items that may lead to misunderstandings.
5. Agreement between the parties involved as to the nature of the property affixed to the land. If there is a clear agreement, the status of the attached item is not likely to be an issue.

(Remember the first initials of the previous five words, which spell the acronym MARIA, to help you remember how to determine whether an object is personal or real property.)

Annual crops such as wheat, corn, and vegetables are known as emblements or fructus industriales, AND are considered personal property. As long as the annual crop is growing it will be transferred as part of the real estate, unless a special provision is included in the sale contract.

Perennial trees, perennial bushes, and grasses that do not require annual cultivation are known as fructus naturales and are considered real property. If a tree is cut down and sold as firewood, the firewood becomes personal property.

• ANNEXATION - Changes personal property to real property.
• SEVERANCE - Changes real property to personal property.