[RPPTL LandTen] Commercial lease - walk-in cooler owned by LL or Tnt?

Fri Sep 18 08:41:53 PDT 2015

Thank you Carlos.  That was very informative and useful.  

Regards, 

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Carlos Arias
Sent: Friday, September 18, 2015 9:22 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Commercial lease - walk-in cooler owned by LL or Tnt?

Copied and pasted from a memo of law I recently did.

Florida case law establishes three factors to a determination of whether improvements annexed to realty become a fixture: (1) the degree of annexation, (2) the adaptation of the chattel to the use of the land, and (3) the intention of the party making the annexation. See Commercial Fin. Co. v. Brooksville Hotel Co., 98 Fla. 410, 123 So. 814 (Fla. 1929).  An additional factor to consider is if the improvement is physically annexed to the realty, whether it can be removed without doing substantial damage to the realty. Commercial Finance Co., 1929, 98 Fla. 410; Standard Motors Finance Co., Inc. v. Central Farmers' Trust Co., 1934, 117 Fla. 217, 157 So. 520; Ridgefield Investors v. Holloway, Fla.1954, 75 So.2d 208; White v. County Mortgagee Corp., Fla.App.1968, 211 So.2d 254; and 64 A.L.R. 1219. The question of whether the items stripped from the home were personalty or part of the realty is one of fact. Corbett v. Appliance Buyers Credit Corp., 172 So.2d 257 (3rd DCA 1965). A Court can accept evidence on this issue from a general contractor who can testify as an expert reagrding the structural damage or lack of same which would be caused by the removal of the fixtures. See Id. at 259.  However, the most important factor to Florida courts in the above analysis is the intention of the parties when making the annexation.  See Mass Brothers, Inc. v. Guaranty Federal Savings and Loan Association, 157 So.2d 258 (2nd DCA 1963) (“Contractual understanding, or the intent of the parties …, is of course a factor; and here the conditional sales contract obviously negatives any intent that the carpeting should become real fixtures.”).

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Thursday, September 17, 2015 5:53 PM
To: Dennis Chen <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Commercial lease - walk-in cooler owned by LL or Tnt?

It’s a mixed question of intent and fact as to whether it’s a fixture or not. If you can unplug it and remove it, then it’s probably personal property

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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, September 17, 2015 4:39 PM
To: Dennis Chen <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Commercial lease - walk-in cooler owned by LL or Tnt?

Fixtures by definition are permanently affixed to the real property and with the intent to do so. Being able to dismantle without any damage to the property leans in favor of personal property not a fixture. 

Sent from Anthony Horky's mobile email

From: Dennis Chen

Sent: Thursday, September 17, 2015 4:11 PM

To: RPPTL Landlord Tenant Committee

Reply To: RPPTL Landlord Tenant Committee

Subject: [RPPTL LandTen] Commercial lease - walk-in cooler owned by LL or Tnt?

Client bought convenience store business ten years ago and also executed a asset purchase agreement with Seller.  The asset purchase agreement provided for the sale of two coolers.  Approximately two years later they purchased a walk-in cooler that can be dismantled and removed from the property.  LL was the Seller of the business and recently sold the building to Buyer.  Buyer wants client to sign a new lease and is listing the coolers as LL property.  LL argues that the coolers are fixtures and belong to LL.  Thoughts?

Dennis A. Chen, Esq.
Chen Law Firm, PA
13360 W. Colonial Dr, Ste. 470
Winter Garden, Florida 34787
Tel:   (407) 392-1872
dennis at chenlaw.net

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