[WSBAPT] Trees as Tangible Personal Property under RCW 11.12.260

Wed Jul 1 15:08:44 PDT 2020

First, it's not likely included in scope of the defined term, as defined in the statute:

 "tangible personal property" means articles of personal or household use or ornament

But, a tree that was intentionally purchased from a nursery is personal property, and only becomes real property if it is planted in the ground with the intent to permanently affix it. The Will is arguably evidence that the decedent did not intend the tree to become permanently affixed, but perhaps wants it to remain severable from the land. I don't know of any Washington case law but the proposition is discussed in 42 Am.Jur. Property Sec. 41 et seq. The issue comes up with, for example, plant nurseries that plant with intent to dig up and sell them later. From WSBA Real Property Deskbook Vols. 1&2, Ch. 23:

§23.2  DEFINITION AND CREATION OF FIXTURES
This section sets out the parameters governing classification of an article as a fixture and discusses how a fixture is created.
(1)  Definition
A fixture generally is defined as an article that was once movable or transferable personal property, i.e., a chattel, but by reason of annexation to or use in association with land has come to be regarded as part of the land. Gasaway v. Thomas, 56 Wash. 77<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=56+Wash.+77&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 105 P. 168<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=105+P.+168&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1909). A fixture, however, does retain its separate identity and may through severance be removed and become personalty again. Allied Stores Corp. v. N.W. Bank, 2 Wn.App. 778<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=2+Wn.App.+778&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 469 P.2d 993<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=469+P.2d+993&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1970).
(2)  Criteria for determining if a chattel has become a fixture
The general test recognized in Washington for determining whether a chattel has become a fixture has been stated as follows:
The true criterion of a fixture is the united application of these requisites: (1) Actual annexation to the realty, or something appurtenant thereto; (2) application to the use or purpose to which that part of the realty with which it is connected is appropriated; and (3) the intention of the party making the annexation to make a permanent accession to the freehold.
More recently, the general test for fixture determination has been stated as follows:
At common law, personal property is a fixture and, therefore, part of real property if (1) the property is actually annexed to the realty, (2) its use or purpose is applied to or integrated with the use of the realty, and (3) the annexing party intended a permanent addition to the freehold.
King v. Rice, 146 Wn.App. 662<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=146+Wn.App.+662&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 191 P.3d 946<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=191+P.3d+946&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (2008), review denied, 165 Wn.2d 1049<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=165+Wn.2d+1049&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (2009).
Filley v. Christopher, 39 Wash. 22<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=39+Wash.+22&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 25, 80 P. 834<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=80+P.+834&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1905).
Each element of this three-pronged test must be met before an article may properly be considered a fixture, although the last element, intention, is deemed to be the most important. State Dep't of Revenue v. Boeing Co., 85 Wn.2d 663<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=85+Wn.2d+663&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 538 P.2d 505<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=538+P.2d+505&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1975). Each of the three elements of the test are discussed separately below.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
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eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Laura Latta
Sent: Wednesday, July 1, 2020 2:39 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Trees as Tangible Personal Property under RCW 11.12.260

Hello List Mates,
Does anyone have a cite for the proposition that a tree (planted in the ground) is not tangible personal property under RCW 11.12.260.
Warmly,
Laura

--
Laura Latta
Law Office of Laura Latta PLLC
she/her

Phone (206) 841-2344
www.LauraLatta.com<http://www.LauraLatta.com>

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Kenmore, WA 98028

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