Removing fixtures often becomes a dispute when tenants make improvements to the facilities they rent — painting walls, installing new carpet, or mounting a video projector and screen for Sunday services. In most cases, the landlord church has no objection to these upgrades. The real conflict emerges at the end of the rental term, when the tenant wants to remove an expensive projector or other installed equipment, but the landlord believes it should remain as a fixture attached to the property. If the rental agreement is silent on this issue, who gets the projector, and who’s responsible for any damage caused by its installation or removal?
What Counts as a Fixture: The Basics Before Removing Fixtures
In its most basic form, a fixture is personal property that’s been attached to real property — such as a wall — in a way that can’t be removed without destroying it or damaging the fixed real property. Under California Civil Code §660, “a thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or embedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.”
Just because something is affixed or attached — like a video projector — doesn’t necessarily mean the landlord keeps it once the tenant leaves. Civil Code §1013 states, in part, that “when a person affixes his property to the land of another, without an agreement permitting him to remove it, the thing affixed… belongs to the owner of the land,” unless the landlord requires removal or the tenant exercises a right of removal under §1013.5.
Removing Fixtures When You Believed You Had the Right
Removing fixtures isn’t automatically off the table just because a tenant was wrong about their rights. Under California Civil Code §1013.5, if a tenant acting in good faith erroneously believed they had the right to affix personal property to the landlord’s land or building, the tenant can still remove that item — upon paying the landlord for any resulting damage to the real property.
Where personal and real property have merged into a single thing that can’t be separated without injury, Civil Code §1025 gives the whole to whichever forms the principal part — usually the real property. But the landlord must then reimburse the other party for the value of what’s given up, or surrender the personal property instead.
California courts apply a three-part test to determine whether personal property has become a fixture: 1) physical annexation; 2) adaptation to use with the real property; and 3) intention to annex it to the real property permanently.
Trade Fixtures
Removing fixtures a tenant installed comes down to whether they qualify as trade fixtures. A well-drafted rental agreement will often spell out the tenant’s intentions for specific improvements and their later removal — but that’s not always the case. Where the lease is silent, a tenant’s ability to remove an item they’ve affixed is governed by the “trade fixture” doctrine.
Under California Civil Code §1019, “a tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for purposes of trade, manufacture, ornament, or domestic use, if the removal can be affected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises.”
The California Supreme Court’s default rule, absent a lease provision otherwise, is that fixtures belong to the landlord — see Peiser v. Mettler (1958) 50 Cal.2d 594, 606. Trade fixtures are the recognized exception to that default rule.
A tenant’s right to remove a trade fixture is also limited by timing — removing fixtures must generally happen before the lease term ends, regardless of how the tenancy is terminated. A tenant who wrongfully removes a fixture, or removes it too late, is liable for damages and can even face criminal liability for theft or embezzlement.
Conclusion
Whether an item has stopped being personal property and become a fixture is ultimately a question of fact — and it’s the single biggest factor in any dispute over removing fixtures. An agreement between the parties that clearly identifies what can and cannot be affixed — and later removed — will govern whatever situation arises, and is by far the cheapest way to avoid this dispute entirely.
Generally, unless a lease says otherwise, fixtures on rental property become the landlord’s property. “Trade fixtures” — items attached for purposes of trade, manufacture, ornament, or domestic use — may generally be removed, provided they haven’t become an integral part of the real property, and are removed before the lease term ends.
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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax or other professional service. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.
