[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@chenlaw.net
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@chenlaw.net
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
[cid:image4e80eb.GIF@f2436a9f.4798b081]
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-cardhttp://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.comhttp://www.RichmanGreer.com
U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, September 17, 2015 4:39 PM
To: Dennis Chen landten@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@chenlaw.netmailto:dennis@chenlaw.net
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.”).
Best regards,
Carlos R. Arias
[Arias Bosinger Law Firm Logo-01]
140 N. Westmonte Dr., Ste. 100A
Altamonte Springs, Florida 32714
Tel: 407.636.2549
Fax: 321.280.2489
www.ABLawFL.comhttp://www.ablawfl.com/
In compliance with the Fair Debt Collection Practices Act, this law firm is a debt collector and may be attempting to collect a debt. Any information provided will be used for that purpose.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Thursday, September 17, 2015 5:53 PM
To: Dennis Chen landten@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
[cid:image002.gif@01D0F1F3.832E7030]
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.commailto:MFarach@richmangreer.com
V-cardhttp://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.comhttp://www.RichmanGreer.com
U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, September 17, 2015 4:39 PM
To: Dennis Chen <landten@lists.flabarrpptl.orgmailto:landten@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@chenlaw.netmailto:dennis@chenlaw.net
Thank you Carlos. That was very informative and useful.
Regards,
AJH Logo mark
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F: 561.952.0096
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: mailto:ahorky@horkylaw.com ahorky@horkylaw.com.
Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@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.”).
Best regards,
Carlos R. Arias
Arias Bosinger Law Firm Logo-01
140 N. Westmonte Dr., Ste. 100A
Altamonte Springs, Florida 32714
Tel: 407.636.2549
Fax: 321.280.2489
http://www.ablawfl.com/ www.ABLawFL.com
In compliance with the Fair Debt Collection Practices Act, this law firm is a debt collector and may be attempting to collect a debt. Any information provided will be used for that purpose.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Thursday, September 17, 2015 5:53 PM
To: Dennis Chen landten@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
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-card http://richmangreer.com/uploads/vcards/VcardFarach.vcf
U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, September 17, 2015 4:39 PM
To: Dennis Chen landten@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@chenlaw.net
