Legal Question in Real Estate Law in California

Re: Real Property or not

The issue of whether a particular item is a trade fixture, and hence removable by a departing tenant or seller who installed it, or whether it has become part of the real property as a fixture (as distinguished from a trade fixture) is a matter that is heavily dependent upon the facts.

Standard real-estate texts give the following list of factors to consider:

(1) the intent of the parties at the time of installation (usually presumes a landlord-tenant situation rather than a buyer-seller); (2) ease of removal; (3) method by which affixed and whether removal results in damage to the structure; and (4) usefulness or necessity of the item to the general-purpose nature of the building.

My guess is that a boiler installed to provide space heating, or for a process for which the building was uniquely adapted such as a cannery, would be considered part of the realty; but here, where the boiler has no particular adaptation to the future use of the building, it would more likely than not be deemed a trade fixture of the seller and thus removable and not part of the real property.

It would really be necessary to see the property and the boiler to give a better assessment. Even then, this could be a close call.

Since you are only at a point of considering the purchase, it's time to negotiate this issue and reach an agreement with the seller.

Re: Real Property or not

You should check your contract for language addressing the issue. Otherwise, the analysis comes down to whether the items are fixtures. Fixtures generally come with the property. If they are not fixtures, the seller can keep them.

For example, a washer and dryer are probably not fixtures. However, a sink, faucet, and air conditioner, would be fixtures. The analysis generally comes down to how easily the item can be removed.

Feel free to contact us if you need further help.