Applying 'law of fixtures' to rentals

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Jan. 14, 2011

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Rent it Right

Janet Portman
Inman News™

Q: We recently moved into a single-family rental. The owners had lived there before us, and when we saw the house and rented it, they were still there. So were a central vacuum system, drapes and a large chandelier over the dining room table. But when we moved in, the vacuum hoses and attachments were gone, as were the living room drapes and the chandelier.

When we asked, the owners said, "Oh, those things are our personal property; we took them with us." We thought they were part of the rental. Who's right? --Paul P.

A: Your question would bring joy to the heart of a property law professor, because the answer calls for understanding the difference between personal property and a "fixture." Though I'm not a professor, I've managed to remember enough of that years-ago class that I may be able to help you.

First, for the rules. Property is either real or personal, as far as the law goes. Real property is land, any buildings on it, and other things that are "affixed" to it. Personal property, also known as "chattel," is movable and not fixed to the land. An item can start out as personal property -- think of a wood-burning stove that moves from the showroom to the living room -- and become part of the real property in which it is installed. The installation -- the act of screwing, nailing, cementing or bolting -- converts the stove from personal property to a fixture, a part of the land. And when the land is sold, the fixture goes with it.

Or so you would think. The extent of the installation, the intent of the person placing the particular piece of property in the home, and how destructive it would be (to the structure or the fixture/chattel) to remove the item, are factors that judges consider when asked to decide whether a particular item is chattel or a fixture.

At one extreme, consider a brick, part of a brick wall. While once a piece of personal property, it's been cemented into the structure, with the intent that it remain, and removing it would cause significant damage to the brick and the wall. So, it's a fixture and stays put.

At the other end, think of a portable dishwasher. Though it's attached to the water source and drain, it may have been chosen precisely because it did not require extensive installation and can be removed with little or no evidence that it was ever there. Nor does the removal injure the dishwasher. It's quite likely that this piece of equipment can travel with its owner.

Let's look at the items you're missing. The central vacuum system won't work without the presence of the hoses and attachments, but taking them away did no injury to the system. True, but saying that their removal is OK is close to saying that it would also be fine for a landlord to remove the racks from a built-in stove. It would not make sense to say that the racks are not part of the oven; just so, the hoses and attachments are necessary to the vacuum system.

Interestingly, one court has faced just this question. In Fisher v. Baronti, an appellate court in New York suggested that the answer to the vacuum question might depend on whether the parties involved are a landlord and tenant or a seller and buyer. The court observed that a buyer, who obtains the property permanently, has a more justifiable expectation of receiving a complete and workable system than a mere tenant, who is obtaining merely the temporary use of the system.

The drapes and chandelier pose slightly different questions. Drapes and their supports and pull mechanisms are definitely attached to the property, as is the chandelier, which is bolted onto the ceiling and wired. But removing both will not cause great harm to the structure or the items. They're starting to look a lot like fixtures. But at this point, the nitty-gritty facts of the case will become very important -- what, if anything, was said about them when you were shown the house? Were they touted as one of its fine features? (Read, fixtures.) Or did the landlord mention that, of course, you'd want to install your own window treatments and lighting? (Meaning, they're going with the landlord.)

To avoid confusion like this, smart buyers and sellers make detailed lists of the items that are part of the sale, always including drapes, lighting fixtures and anything else that might be open to disagreement. Nothing prevents a seller from saying, before the sale, that an item that by default would be a fixture, and part of the sale, is instead going to be removed. The buyer can argue about it, but importantly, this debate takes place before anyone has signed the sales contract.

Landlords should practice the same care, particularly when renting a home that they once lived in. It's very easy to view items as personal and movable because they have so much personal history, despite their correct categorization in the law. Short of removing the features that make a rental fit and habitable (you can't take the one and only toilet because it's your favorite, for example), there's nothing wrong or illegal about saying upfront that the lovely dining room fixture will be going with the landlord to his new home.

Q: A longtime tenant of mine just moved out in order to enter assisted living. When I went into his flat, I was shocked. It was crammed full of stuff -- old newspapers, food containers, rags -- so that you could hardly move. It's going to cost a mint to clean up, and I'll even have to replace wallboard (mold damage) and gut the bathrooms. The security deposit will never cover it -- can I expect my insurance policy to help out? --Mike M.

A: It sounds like your ex-tenant suffered from compulsive hoarding (also known as Collyer Brothers' Syndrome, named after famous New York hoarders from the last century). This malady, which some doctors understand as a type of obsessive-compulsive disorder, involves a need to acquire and keep items that have no rational value. Many people suffer from Collyer's Syndrome, though not all exhibit the extremes that you describe.

I think you've got an uphill fight on your hands if you expect your insurance policy to cover this damage, though there is a long-shot theory (more on that below). You'll need to start by looking at the language of your property insurance policy.

Property insurance will typically cover damage that is the result of a sudden and unexpected event, such as a torn roof that was caused by a rainstorm, a broken window resulting from vandalism, or a fire caused by your tenant's negligence. The key words, "sudden and unexpected," should concern you.

The very definition of a hoarder is that the person accumulates items over time, eventually completely surrounding himself. By definition, it takes time to become a hoarder, and more time still for the consequences of hoarding (like vermin infestation, mold and filth) to become property hazards.

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