Generally speaking, a fixture is a piece of personal property that is permanently attached to a piece of real estate such that its removal would cause damage. Some attorneys advise their clients on residential deals that if they turn the house/apartment upside down, the items which fall are not considered fixtures. Of course this is an oversimplified definition because some items such as flat screen televisions mounted to the wall may present a “gray area.”
Best practices counsel in favor of drafting the Contract of Sale so that it clearly sets forth which items are included and which items are excluded from the deal. Buyers wishing to include certain items should be very specific so as to reduce the risk of any confusion. If a real estate broker is involved in the transaction that individual may attach an included/excluded list to the deal sheet which is provided to the attorneys.
In the commercial arena, many tenants like to specify that they may remove trade fixtures at the conclusion of the lease. On a related issue, courts have held that telecommunications equipment at cell tower base station, including antennae, coaxial cables and communications shed (or “shelter”), were sufficiently “permanent” to be taxable as common law fixtures, notwithstanding that they could be removed within two to five days. SeeNextel of New York, Inc. v. Assessor for Village of Spring Valley, 2004, 4 Misc.3d 233, 771 N.Y.S.2d 853.
Having an experienced attorney negotiate the contract can help reduce the risk of any surprises during the final walk through or at the closing table.
To speak with an experienced real estate attorney about buying a property in New York, please call us at (914) 338-8050 or send an e-mail to keith@betenskylaw.com. For more information about the firm, please visit www.betenskylaw.com.
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