(Orig. Code 1863, §§ 2198, 2199; Code 1868, §§ 2193, 2194; Code 1873, §§ 2219, 2220; Code 1882, §§ 2219, 2220; Civil Code 1895, §§ 3049, 3050; Civil Code 1910, §§ 3621, 3622; Code 1933, § 85-105.)
Law reviews.- For article discussing lawful removal of fixtures by tenant, see 4 Ga. B.J. 16 (1942). For article on the law governing removal of trade fixtures from property in Georgia, see 19 Ga. B.J. 35 (1956). For article, "Things Attached to Realty," see 15 Mercer L. Rev. 343 (1964). For article discussing U.C.C. provisions establishing a security interest in fixtures as a means of protecting sellers, see 16 Mercer L. Rev. 404 (1965).
JUDICIAL DECISIONSANALYSIS
General Consideration
What constitutes "fixtures".
- It was unnecessary to go beyond former Civil Code 1895, §§ 3045, 3049 and 3050 (see O.C.G.A. §§ 44-1-2 and44-1-6) to ascertain what were fixtures, and the Code was in entire harmony with the common law on the subject. Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669 (1902).
This statute does not always provide a certain and easy test by which it can be determined in a given case whether or not the article in question remains personalty, or is attached to the realty and a part thereof. Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16, 93 S.E. 525 (1917) (see O.C.G.A. § 44-1-6).
Term "fixtures" may be deemed to embrace all those chattels which, by reason of their annexation to the land, partake both of the nature of personalty and realty, irrespective of the question of whether the chattels are removable or not. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102, 15 S.E.2d 526 (1941); Slater v. Dowd, 79 Ga. App. 272, 53 S.E.2d 598 (1949); Hargrove v. Jenkins, 192 Ga. App. 83, 383 S.E.2d 636 (1989).
Agreement as to building does not affect nature of property.
- Building erected upon the land of another under arrangement with the owner of the land that the building shall be removed when required is real estate. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).
Factors considered in determining whether personalty is a fixture.
- Whatever is placed in a building to carry out the obvious purpose for which the building was erected, or to permanently increase its value for such purpose, and not intended to be moved about from place to place but to be permanently used with the building, becomes a part of the realty, although it may be removable without injury either to itself or the building. Waycross Opera House Co. v. Sossman, 94 Ga. 100, 20 S.E. 252, 47 Am. St. R. 144 (1894); Cunningham & Co. v. Cureton, 96 Ga. 489, 23 S.E. 420 (1895); Brigham v. Overstreet, 128 Ga. 447, 57 S.E. 484, 10 L.R.A. (n.s.) 452, 11 Ann. Cas. 75 (1907).
Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that the article cannot be removed therefrom, depends upon the circumstances under which the article was placed upon the realty, the uses to which the article is adapted, and the parties who are at issue as to whether such an article is realty or detachable personalty. Pendley Brick Co. v. Hardwick & Co., 6 Ga. App. 114, 64 S.E. 664 (1909); Harn v. State, 51 Ga. App. 34, 179 S.E. 553 (1935); Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937); Goger v. United States (In re Janmar, Inc.), 4 Bankr. 4 (Bankr. N.D. Ga. 1979).
To constitute a fixture there must be annexation to the realty, together with unity of title and ownership of the realty and the thing affixed. State v. Dyson, 89 Ga. App. 791, 81 S.E.2d 217 (1954).
Basic issue in determining whether an article of property is considered realty or personalty is whether the article can be removed without essential injury to the freehold or to the article itself; in addition, the court must consider the intent of the parties as shown by the contract, and if there is a question of intent, that question is for the trier of fact. Brown v. United States, 512 F. Supp. 24 (N.D. Ga. 1980).
Determination of whether a particular piece of personalty has become a fixture requires analysis of three distinct factors. First, the court must consider the degree of physical attachment and removability of the article: wherever the article can be removed without essential injury to the freehold, or the article itself, it is a chattel; otherwise, it is a fixture. Second, and even more important, is the intention of the parties with respect to the article's status. Finally, a third factor that must be considered is whether the requisite unity of title between the personalty and the realty was present at the time the article allegedly became a fixture. Homac, Inc. v. Fort Wayne Mtg. Co., 577 F. Supp. 1065 (N.D. Ga. 1983).
Difficulty or ease of removal of property from premises is not determinative of its status as a fixture vel non. Goger v. United States (In re Janmar, Inc.), 4 Bankr. 4 (Bankr. N.D. Ga. 1979).
Fixtures pass by conveyance of freehold.
- As between grantor and grantee the strict rule of the common law prevails that, in absence of agreement to the contrary, all fixtures, whether actually or constructively annexed to the realty, pass by a conveyance of the freehold. Wolff v. Sampson, 123 Ga. 400, 51 S.E. 335 (1905); Brigham v. Overstreet, 128 Ga. 447, 57 S.E. 484, 10 L.R.A. (n.s.) 452, 11 Ann. Cas. 75 (1907).
All fixtures, whether actually or constructionally annexed to the realty, pass by a conveyance of the freehold, absent an agreement to the contrary. Kal-O-Mine Indus., Inc. v. Camp (In re Lumpkin Sand & Gravel, Inc.), 104 Bankr. 529 (Bankr. M.D. Ga. 1989), aff'd, 111 Bankr. 370 (M.D. Ga. 1990).
Applicability to mortgages.
- When fixtures are erected by owner who subsequently sells or mortgages premises, this statute is peculiarly applicable. When land is conveyed, whatever fixtures are annexed to the realty at the time of the conveyance pass with the estate to the vendee, unless there be some express provision to the contrary. Fixtures pass to a bona fide purchaser of the real estate, notwithstanding an agreement between the owner of the land and the vendor of the fixtures that the fixtures should remain personal property. The same rules as to fixtures which apply as between vendor and vendee apply also as between mortgagor and mortgagee. Waycross Opera House Co. v. Sossman, 94 Ga. 100, 20 S.E. 252, 47 Am. St. R. 144 (1894); Cunningham & Co. v. Cureton, 96 Ga. 489, 23 S.E. 420 (1895); Raymond v. Strickland, 124 Ga. 504, 52 S.E. 619, 3 L.R.A. (n.s.) 69 (1905) (see O.C.G.A. § 44-1-6).
Fixture becomes personalty when detached, and a cause of action in trover then arises which is not defeated when the chattel is later attached to other realty. Insilco Corp. v. Carter, 245 Ga. 513, 265 S.E.2d 794 (1980).
Building is real estate until severed.
- Until severed from the land, a building is a part of the realty on which the building sits. Simpson v. Tate, 226 Ga. 558, 176 S.E.2d 62 (1970).
Action for trover lies for house wrongfully detached.
- Under this statute, a house wrongfully detached from land and placed upon other land becomes personalty, and an action of trover will lie for the recovery. Kennedy v. Smith, 149 Ga. 61, 99 S.E. 27 (1919); Kennedy v. Smith, 23 Ga. App. 724, 99 S.E. 318 (1919) (see O.C.G.A. § 44-1-6).
Fixtures on leased property tax exempt.
- Improvements on leased property were fixtures and were not taxable as personal property. Fulton County Bd. of Assessors v. McKinsey & Co., 224 Ga. App. 593, 481 S.E.2d 580 (1997).
Effect of removal of fixtures to save from fire.
- When severed from the realty and saved from fire, fixtures become personalty, but remain the property of the landlord who has the right to dispose of the fixtures as the landlord thinks proper. Pope v. Gerrard, 39 Ga. 471 (1869).
Person owning thing annexed to land need not have fee simple title to the land. It is sufficient if the person holds an estate for years in the land or an easement or right of way over the land, and the purchaser of an interest in the land will acquire the vendor's title to the fixtures attached thereto, unless it is otherwise provided in their contract. State v. Dyson, 89 Ga. App. 791, 81 S.E.2d 217 (1954).
When ownership of land is in one person and thing affixed to the land is in another, and the fixture is in its nature capable of severance without injury to the former, the fixture cannot, in contemplation of law, become a part of the land, but necessarily remains distinct property to be used and dealt with as personal estate. Holland Furnace Co. v. Lowe, 172 Ga. 815, 159 S.E. 277 (1931); Stewart County v. Holloway, 69 Ga. App. 344, 25 S.E.2d 315 (1943).
Ownership of land and fixtures different.
- That an owner of an undivided interest in land buys personalty attached to the freehold, cannot render the personalty a fixture when the interests of owners in the land and the personalty are different in extent. Holland Furnace Co. v. Lowe, 172 Ga. 815, 159 S.E. 277 (1931).
Priority of lien as to after-acquired fixtures.
- When a seller of personal property, which is later affixed to realty, retains an unperfected security interest in the goods, the seller's security interest attaches upon delivery and is superior to another creditor's prior perfected security interest in existing and after-acquired personal property of the common debtor, when such after-acquired personalty is affixed to the realty as fixtures. Babson Credit Plan, Inc. v. Cordele Prod. Credit Ass'n, 146 Ga. App. 266, 246 S.E.2d 354 (1978).
Personalty affixed to the realty, which becomes a fixture passing with the realty, is subject to the rule that an unperfected purchase money security interest prevails over a prior interest in the realty to the extent of advances made prior to attachment of the latter security interest, but not those advances made subsequent to attachment. Babson Credit Plan, Inc. v. Cordele Prod. Credit Ass'n, 146 Ga. App. 266, 246 S.E.2d 354 (1978).
For examples of movable fixtures, see McCall v. Walter, 71 Ga. 287 (1883).
Ramps, which were part of a high-rise parking garage, constituted a fixture since the ramps were an integral part of the building and were intended to remain permanently in place. Trust Co. Bank v. Huckabee Auto Co., 58 Bankr. 826 (Bankr. M.D. Ga. 1986).
Counters and drawers in a drug store placed there by the landlord are fixtures. Pope v. Gerrard, 39 Ga. 471 (1869).
Glass show window which is permanent part of store building is not a mere trade fixture but is part of the realty. Chapman v. Silver & Bro., 18 Ga. App. 476, 89 S.E. 590 (1916).
"Double-wide" mobile home unit which has become permanently attached to the land on which the double-wide is placed ceases to be a "vehicle" under the Motor Vehicle Certificate of Title Act, O.C.G.A. Ch. 3, T. 40, so that a security interest is obtained by recording a security deed to the land and the "improvements thereon" rather than placing a lien on the mobile home under the vehicle title act. Walker v. Washington, 837 F.2d 455 (11th Cir. 1988).
Mobile home was fixture.- Debtors' mobile home, purchased some eight years earlier and placed on the debtors' raw land, could not be considered personal property but instead needed to be considered as a fixture to the realty based on evidence that the debtors removed the tongue device for hitching the mobile home, had placed a curtain around the base of the home, and had made improvements such as landscaping and addition of a carport attached to the mobile home on the land. Williamson v. Wash. Mut. Home Loans, Inc. (In re Williamson), 387 Bankr. 914 (Bankr. M.D. Ga. 2008).
Mobile home was not a fixture.
- Because a Chapter 13 debtor's evidence as to the condition of a mobile home established that the wheels, axles, and tow tongue were still attached, that the home was not sited on a permanent foundation, and that the home could be removed without real damage either to it or to the underlying realty, the home was not a fixture within the meaning of O.C.G.A. § 44-1-6(a), the presumption in O.C.G.A. § 40-3-20 that the mobile home was a vehicle was not rebutted, and a secured creditor's interest therein was not protected from modification by 11 U.S.C. § 1322(b)(2). INGOMAR, L.P. v. Collins (In re Collins), Bankr. (Bankr. S.D. Ga. Sept. 14, 2006).
Movable safe.
- When safe was not attached to the building and was moveable at pleasure upon the safe's rollers, with no injury to any part of the building, evidence did not demand finding that the safe was a fixture. Cozart v. Johnson, 181 Ga. 337, 182 S.E. 502 (1935).
Radio tower.- When the intention of the parties was unclear as to whether a radio tower was to be a fixture and the tower was bolted to concrete slabs with bolts in each of the tower's three legs, no guy wires secured the tower, the tower apparently could be removed from the realty without damage to the land or to the radio tower by removing these bolts and disassembling the tower, and the tower had already been removed once, the tower was personal property rather than a fixture. Tidwell v. Slocumb (In re Ga. Steel, Inc.), 71 Bankr. 903 (Bankr. M.D. Ga. 1987).
Trees.
- Contract of sale in regard to timber attached to the realty but to be severed before title is to pass is an executory sale of personalty. Graham v. Weil, 126 Ga. 624, 55 S.E. 931 (1906); Clarke Bros. v. McNatt, 132 Ga. 610, 64 S.E. 795, 26 L.R.A. (n.s.) 585 (1909).
Cited in Jackson v. Crutchfield, 184 Ga. 412, 191 S.E. 468 (1937); Ramsey v. Kitchen, 192 Ga. 535, 15 S.E.2d 877 (1941); Hudgins & Co. v. Chesterfield Laundry, Inc., 109 Ga. App. 282, 135 S.E.2d 906 (1964); Kirkland v. Morris, 233 Ga. 597, 212 S.E.2d 781 (1975); Tifton Corp. v. Decatur Fed. Sav. & Loan Ass'n, 136 Ga. App. 710, 222 S.E.2d 115 (1975); LSREF2 Baron, LLC v. Alexander SRP Apts., LLC, 15 F. Supp. 3d 1295 (N.D. Ga. 2013).
Trade and Domestic Fixtures
Trade fixtures exception to common law.
- General rule of the common law was that articles attached to the realty become a part thereof. But there was an exception to this rule in the case of trade fixtures. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937); Stewart County v. Holloway, 69 Ga. App. 344, 25 S.E.2d 315 (1943).
Owner of place of trade generally not permitted to remove trade fixtures adapted to purpose for which building constructed, in absence of agreement to that effect entered into at the time of the sale. In the absence of such agreement, the fixtures will pass under the instrument which conveys title to the realty. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).
Applicability of rule as to trade fixtures.
- Rule in reference to trade fixtures is applicable in cases of landlord and tenant, or when the occupant is in for a limited time; but the rule generally has no application whatever between a grantor and grantee. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).
Domestic fixtures.
- An electric chandelier, annunciator, and like contrivances or devices attached to the ceiling or walls of a house by a tenant, at the tenant's own expense and for the tenant's personal comfort and convenience, come within the legal definition of "domestic fixtures," when so placed that the fixtures can be readily detached without injury to the premises. Not being annexed to the rented structure with any view to their becoming permanently attached thereto as a part of the realty, the fixtures do not lose their identity as chattels. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).
Only domestic or trade fixtures are personalty.
- Only fixtures of a building which are personalty are trade fixtures, or domestic or ornamental fixtures. Chapman v. Silver & Bro., 18 Ga. App. 476, 89 S.E. 590 (1916).
Intention of Parties
Intent of parties governs.
- Determination of whether or not an object has become a fixture is generally governed by intent of the parties and is based upon a variety of factors. Goger v. United States (In re Janmar, Inc.), 4 Bankr. 4 (Bankr. N.D. Ga. 1979).
Articles of ambiguous or variable character.
- While the law classifies articles, it at the same time recognizes their ambiguous or variable character and permits the parties to class articles differently in different instances. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854, 169 S.E. 115 (1933).
Right to remove annexed articles as personalty may be reserved in instrument conveying title to realty, or by an agreement extrinsic and collateral. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937).
When intent shown by unambiguous contract, personal property, though attached, remains personal property. Babson Credit Plan, Inc. v. Cordele Prod. Credit Ass'n, 146 Ga. App. 266, 246 S.E.2d 354 (1978).
Parol agreement to allow removal inadmissible.
- When there is a conveyance of land by deed containing no reservations as to the buildings, a parol understanding that the vendor retains the ownership of the houses, with the right to enter and remove the houses, is inconsistent with the deed and ought to be excluded from the evidence. Simpson v. Tate, 226 Ga. 558, 176 S.E.2d 62 (1970).
When permanency in question, parol evidence admissible.
- Element of intention enters into the question of permanency, whether of attachment or placing, and the intention is open to investigation by parol evidence. Smith v. Odom, 63 Ga. 499 (1878); United Cigar Stores v. McKenzie, 140 Ga. 270, 78 S.E. 1006 (1913); Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854, 169 S.E. 115 (1933).
Intention of parties is question for jury.
- When it is doubtful, under all the circumstances, whether the article in question is personalty or is a fixture, the doubt is to be solved by the jury. Harn v. State, 51 Ga. App. 34, 179 S.E. 553 (1935).
Doubt as to whether affixed personalty to be transferred.
- If the parties intend only to convey realty, the term "fixtures" is the accepted terminology if there is any doubt as to whether personalty affixed to the realty is to be transferred. San Joi, Inc. v. Peek, 140 Ga. App. 397, 231 S.E.2d 145 (1976).
Bankruptcy court could not determine on summary judgment whether bowling alley lanes and pin setters which a bank sold when the bank foreclosed on a security agreement the bank held on a bowling alley and sold the bowling alley were fixtures under O.C.G.A. § 44-1-6 because the parties executed two documents which contained evidence of a conflicting intent, and the court ordered the parties to present evidence on that issue at trial. Although the court granted the bank relief from the stay that was imposed when a corporation declared Chapter 7 bankruptcy and allowed the bank to sell the bowling alley at a private sale, the bank's description of the property prior to sale was sufficient to convey title only to real property that was part of the bowling alley, and the Chapter 7 trustee was seeking an order requiring the bank to turn over proceeds it derived from selling the debtor's personal property, pursuant to 11 U.S.C. § 542. Lubin v. Ga. Commerce Bank (In re Southern Bowling, Inc.), Bankr. (Bankr. N.D. Ga. Oct. 8, 2010).
Machinery
Construction of "movable at pleasure".
- If the language of this statute, "movable at pleasure," was interpreted in a literal sense, it would apply to almost every kind of machinery, and clearly such is not the intention of the legislature. Cunningham & Co. v. Cureton, 96 Ga. 489, 23 S.E. 420 (1895) (see O.C.G.A. § 44-1-6).
Parties can vary provision that machinery passes with realty.- In a conveyance of land in fee, machinery attached thereto will ordinarily pass as part of the realty. But when it is intended otherwise by the parties, and the parties enter into a written contract expressly reserving to the seller the machinery with the right to remove the machinery, such agreement will be given effect. Hunter v. Hicks, 571 F.2d 928 (5th Cir. 1978).
Dredge used by the vendor in the vendor's mining operations was a fixture and ownership passed to the purchaser under the vendor's deed. Kal-O-Mine Indus., Inc. v. Camp (In re Lumpkin Sand & Gravel, Inc.), 104 Bankr. 529 (Bankr. M.D. Ga. 1989), aff'd, 111 Bankr. 370 (M.D. Ga. 1990).
For examples of whether certain machinery passes with realty, see Smith v. Odom, 63 Ga. 499 (1879); Cunningham & Co. v. Cureton, 96 Ga. 489, 23 S.E. 420 (1895); Brigham v. Overstreet, 128 Ga. 447, 57 S.E. 484, 10 L.R.A. (n.s.) 452, 11 Ann. Cas. 75 (1907); Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16, 93 S.E. 525 (1917); J.S. Schofield's Sons Co. v. Citizens' Bank, 2 F.2d 129 (5th Cir. 1924), cert. denied, 266 U.S. 635, 45 S. Ct. 226, 69 L. Ed. 480 (1925); Anglo-American Mill Co. v. Dingler, 8 F.2d 493 (N.D. Ga. 1925); Holland Furnace Co. v. Lowe, 172 Ga. 815, 159 S.E. 277 (1931); Rucker v. Hunt, 44 Ga. App. 836, 163 S.E. 612 (1932); Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854, 169 S.E. 115 (1933); Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937); Atlanta Gas-Light Co. v. Farrell, 190 Ga. 437, 9 S.E.2d 625 (1940); Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102, 15 S.E.2d 526 (1941); Slater v. Dowd, 79 Ga. App. 272, 53 S.E.2d 598 (1949).
Jury question.
- If some of the machinery is shown not to be attached to the building other than by wires and pipes by which power is applied, others are not attached in any way to the building, and still others are attached, the case calls for reference to a jury. The issue is a question of fact, not a question of law. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854, 169 S.E. 115 (1933).
OPINIONS OF THE ATTORNEY GENERALFor listing of numerous items to be considered as fixtures and as part of realty, see 1969 Op. Att'y Gen. No. 69-90.
Advertisement sign per se is personal property, but when placed with the intention that the sign remain permanently in that place, the sign may be considered as part of the realty. 1970 Op. Att'y Gen. No. 70-163.
Mobile homes.- Mobile home can be considered as part of the realty if it is placed on the property with the intent that the mobile home remain permanently in place and that the mobile home pass as part of the realty when conveyed; in order to determine what the intent was with respect to the mobile home, all of the surrounding facts and circumstances should be considered in each case as outward manifestations of what was in fact intended. 1969 Op. Att'y Gen. No. 69-316.