A tenant can take all of his property when moving out, with the exception of items that are "fixtures." A fixture is an item of personal property attached to the land or building that is regarded as an irremovable part of the real property.
In regards to a landlord tenant relationship, if the landlord and tenant have an agreement between whether the personal property can be removed at the end of the lease, then the agreement controls. If there is no agreement, courts have held that a tenant usually lacks the intent to permanently improve the property and may remove any annexed fixture as long as the removal does not cause severe damage. The personal property attached to the land must be removed by the end of the lease term or within reasonable time after the lease term has ended
A fixture is a piece of property that has been so affixed to the land that it is no longer considered personal property and has become part of the real property. When a piece of personal property has become a fixture, the fixture passes along with the ownership of the land.
When property has been incorporated and attached into the land in a way that they lose their identity (bricks, concrete) they are considered fixtures. Also, items that have not lost their identity, but have been attached to the land in a way that the removal will cause severe damage, that property is also considered a fixture.
A property is considered a fixture if the intention of the party who made the annexation was to make the property part of the property. The intention is determined by the nature of the item attached, manner of it’s attachment, amount of damage it will cause by its removal, and the adaptation of the item to the property.
- Annexation: whether the item has been permanently attached to the building, and how hard it would be to remove it and how much damage would it cause.
- Adaptation: whether the item has become sufficiently adapted to the normal uses of the property that such uses would be disrupted or impaired if the item were removed. This includes the amount of damage resulting to the land or personal property from its removal.
- Intention: whether it was the intention of the party who added the item that it become a fixture and whether the other party was aware of its attachment.
- Constructive Annexation: Some fixtures are considered to be customized for the property (key to doors, custom curtain rods). These would be considered fixtures even if its not physically attached to property.
- Amount of Damage: If the removal of the item will cause severe damage, then the item is considered a fixture since it has been annexed to the property with intent to become permanent.
If the fixture has been brought onto the property by the tenant, the tenant may remove the property before the end of the lease term as long as the removal does not cause severe damage. The tenant will be liable to the landlord for any damage caused by its removal.
Generally, if the tenant removes any fixtures owned by the landlord from the property, he will be liable to the landlord. The owner may sue the tenant for the cost of replacing the fixture, and any damage that resulted from its improper removal.
A tenant can make sure personal property does not become a fixture by entering into an agreement with the landlord when the property is first installed. For example, agreeing that the tenant can install a dishwasher and remove it when they move out.
A tenant may also remove any fixture that is annexed to the property before the lease ends. This will typically show the intent that the tenant wants to take the property when moving out of the premises.
A lawyer can help a landlord or tenant draft an agreement to specify which items will remain personal property of the tenant, and which are fixtures belonging to the landlord or building owner. An experienced real estate lawyer can help a tenant avoid having to pay a landlord property damages for removing something that the landlord considers a fixture.