Fixtures are pieces of property that are part of the land by annexation to or use with the land. There is a constant question about whether an item is a fixture or personal property; courts have given answers that can seem baffling at times. Mining pipes that were moved and removed annually: not a fixture [Roseburg Nat’l Bank v. Camp, 173 P 313 (Or 1918)]. Wheeled prune drying equipment used in the prune orchard: fixture [Metro. Life Ins. Co. v. Kimball, 94 P2d 1101 (Or 1939)].
The test for fixtures is described in Marsh v. Boring Furs, Inc., 551 P2d 1053 (Or 1976):
- Annexation: What is the degree of attachment?
- Adaptation: What is the application of the item to the use or purpose of the realty?
- Intention: Was the intent to make the item permanent?
No single factor is determinative, and this test gives courts wide latitude to fashion an answer based on the particulars of each situation.
When the property has a specific usage, things can be considered “constructively affixed” based on that usage [for example, prune drying equipment]. For that reason, even though you can unscrew the dish washer in most homes, or can remove the range above the stove with just a pocket knife and some elbow grease, we consider those things to be fixtures. It may sound silly, but these questions have been litigated before. In Dean Vincent, Inc. v. Redisco, Inc., 373 P2d 995 (Or 1962), a seller wanted to remove and keep the carpeting in the apartment and argued that their expert could remove it, therefore it was not a fixture. However, the custom shape and usage with the property made it a fixture.
In all the ambiguity of fixtures, the contract can solve the issue. The contract will oftentimes control over case law, so the parties can rely on the terminology within the four corners of the agreement. The Oregon REALTORS® Purchase and Sale Agreements (Form 1.1 through Form 1.5) define fixtures to include any physical property permanently attached to the property and the related controls [keys, fobs, garage door openers, light bulbs, etc.]. The provision then specifically calls out a significant, but not comprehensive list of items:
- Doors and windows including storm doors and windows and door and window screens; window shades; window plantation shutters;
- Awnings;
- Installed irrigation equipment;
- Installed landscaping features (including hardscapes and plantings);
- Installed antennas;
- Attached floor coverings;
- Heating, ventilation, air conditioning systems and related components; installed fireplace and fireplace insert components;
- Attached light fixtures and light bulbs;
- Plumbing; water heaters;
- Installed window blinds, and installed curtain or drapery rods (but not curtains or drapes)
If you have a property with items that are not on this list, the parties can and should express their intent in the Sale Agreement: For example “Giant Olmec head statue in the back yard will be considered personal property in this transaction and will remain property of the Seller.”
This can be done in several ways:
- Page 1 of each sale agreement has a space for the parties to specifically write in any personal property that will be included with the sale or any fixtures that will be excluded
- Each sale agreement has an “Additional Provisions” section that the parties can use
- Parties can use a form 2.2 General Addendum
Keep in mind though, the Seller will need a plan to get their things off the property before the transaction closes. If Seller wants to keep the giant statue, Seller needs to plan a way to remove it before they sign at closing.