[WSBAPT] Trees as Tangible Personal Property under RCW 11.12.260

Wed Jul 1 15:22:08 PDT 2020

This is very helpful. Thank you.

On Wed, Jul 1, 2020 at 3:13 PM Eric Nelsen <Eric at sayrelawoffices.com> wrote:

> 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
>
> 206-625-0092
>
> 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
>
> PO Box 82356
>
> Kenmore, WA 98028
>
>
>
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-- 

*Laura LattaLaw Office of Laura Latta PLLC*

she/her

Phone (206) 841-2344

www.LauraLatta.com

PO Box 82356

Kenmore, WA 98028

*NOTICE:  This communication may contain privileged or other confidential
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