Florida Real Estate Sales Associate Examination Content OutlineReal Estate Property and OwnershipMedium
A buyer is interested in a property that includes a detached shed, a custom-built gazebo, and several fruit-bearing trees. During negotiations, the seller states they intend to remove the shed and gazebo before closing, claiming they are personal property. The buyer believes these items should convey with the land. Which of the following legal concepts would most likely determine whether the shed and gazebo are real or personal property?
- AThe doctrine of emblements
- BThe principle of highest and best use
- CThe intention of the parties
- DThe rule of capture
Show answer & explanationAnswer & explanation
Correct answer: C. The intention of the parties
The intention of the parties is a primary test for determining whether an item is a fixture (real property) or personal property. While other factors are considered, the intent of the annexor is often paramount, especially in disputes between buyers and sellers.
Why the other options are wrong
- A. Emblements relate to crops and are considered personal property, not permanent structures.
- B. Highest and best use is an appraisal principle, not a determinant of property type.
- D. The rule of capture applies to natural resources like oil and gas, not structures.
Fixture Test: Intent
One of the key tests to determine if an item is a fixture (real property) or personal property, focusing on the annexor's original intention.
- Primary test in disputes.
- Determined by actions and circumstances, not just stated desire.
- Can be overridden by written agreements.
Memory trick: MIA is the key to fixtures!