holding that two bars, ice-maker, coolers, water heater, air conditioner, cabinets and shelving were not fixtures
How later courts described this case
- holding that two bars, ice-maker, coolers, water heater, air conditioner, cabinets and shelving were not fixtures
- observing, "Whether or not a chattel when attached to real estate becomes a fixture and thus part of the realty is a complex problem."
- whether property annexed to realty constitutes “trade fixture” is question of fact, or mixed question of law and fact
Written by the judges who cited it.
The opinion
NESBITT, Judge
(dissenting):
I respectfully dissent. The lease between the landlord and the tenant provided that “all additions, fixtures or improvements ... shall become the property of the lessor ... at the termination of the lease.” When the lease was terminated by the condemnation proceeding, the lessee was entitled to compensation for the taking of his property interests as determined under the contract. The majority ignores the unambiguous language of the contract and, by classifying the property in question as “trade fixtures”, creates an implied agreement between the parties that the fixtures belong to Hammons.
Citing Wetjen v. Williamson, 196 So.2d 461, 464 (Fla. 1st DCA 1967), the majority states that trade fixtures are generally characterized as personalty which is removable by the tenant at the expiration of the lease “even in the absence of express stipulation.” However, the present case, unlike Wetjen , involves an express stipulation that fixtures may not be removed and that they become the property of the lessor upon termination of the lease. Because the lease stated that upon termination, all fixtures would be owned by the lessor, it was error for the court to disregard the contract and award Hammons the sum of $9,759, representing the value of the “immovable fixtures.” Cf. Wingert v. Prince, 123 So.2d 277 (Fla. 2d DCA 1960) (lessee *231 entitled to compensation where lease contained removal clause).
Despite the majority’s contention to the contrary, City of New York v. G & C Amusements, Inc., 55 N.Y.2d 353 , 449 N.Y.S.2d 671 , 434 N.E.2d 1038 (1982) is on point. As in the present case, the lease in G & C Amusements specifically stated that the fixtures would become the property of the lessor upon termination of the lease. The Court of Appeal held that, under the terms of the lease, “as of the date title vested with the City pursuant to the condemnation petition the fixtures were the property of the landlord.” Following this reasoning, Sweeting was entitled to the escrowed funds.
I would reverse the order under review with directions to award the value of the business fixtures to the landlord.