Dear Forms Committee: What is the difference between a fixture and personal property?

All fixtures originate as personal property. They become fixtures after being brought to real property. To distinguish fixtures from personal property, consider the following criteria:

• Method of attachment: Is it affixed permanently using screws, bolts, or buried underground like utilities? Could it be easily be removed without damage to the item or the property?
• Adaption to the property: Is the item integral to the property’s function and purpose for which it is sold? Was it designed to fit the property? Is it necessary to have it in order to use something at the property?
• Relationship of the parties: In a dispute between a landlord and tenant, usually everything the tenant brings to the property will remain the tenant’s property at the end of the tenancy. In a dispute between a buyer and seller, the question isn’t as clear.
• Intent of the attacher: What was the intention of the person bringing the item to the property? Is there a statement in a will or other document indicating that it would be taken away in the future? Are there any indications, such as statements in advertising, indicating what would happen to the item at closing?
• Agreement between the parties: Is there a written agreement specifying the treatment of the item as personal property or a fixture? For instance, “excluding grandma’s crystal chandelier in the dining room.”

Utilizing the acronym MARIA can aid in determining whether a fixture is permanently attached to real property and should be regarded as such.

Disagreements may arise regarding the interpretation of MARIA in defining personal property as a fixture.

If you are unsure of the status of an item, the best practice is to include or exclude it in the Sale Agreement, Counteroffer, or Addendum.

All comments and responses from OREF or its staff, managers, and volunteers are non-legal opinions made for general purposes. Each Forms subscriber must rely solely upon their Principal broker or personal legal counsel for specific advice and instruction. You and your client should independently confirm that the Form(s) you use are legally suitable for the purposes intended and that they are current with respect to all laws and regulations.