FACTS: The property has a removable pool fence around the pool that is not drilled into the pool deck. Therefore, the fence is not attached to the real property.  Buyer and seller entered into an Arizona REALTORS® Residential Resale Real Estate Purchase Contract (“Contract”), but the removable pool fence was not addressed in section 1(g) of the Contract. Buyer and seller are now in a dispute at close of escrow.  The buyer insists that the pool fence is a fixture and conveys with the property. The seller insists that they always intended to keep the pool fence, it is their personal property, and does not convey with the property. 

ISSUE: Is an unaffixed removable pool fence a fixture or personal property? 

ANSWER: See Discussion. 

DISCUSSION:

The issue of whether an item is a fixture or personal property results in many disputes.  Arizona courts employ a three-part test for determining when personal property has become a fixture: (1) annexation (affixed) to the realty; (2) adaptability or application as affixed to the use of the real estate; and (3) an intention of the party to make the object a permanent part of the realty.  Murray v. Zerbel, 159 Ariz. 99, 101, 764 P.2d 1158 (App. 1988).  Since the removable pool fence is not drilled into the pool deck and therefore not affixed to the real property, the seller did not intend to make the removable pool fence a part of the real property, and it is not addressed in the Contract, the removable pool fence is probably personal property, which does not covey at close of escrow. 

Note: Best practice would be for the buyer to include any questionable fixtures or personal property that they want to convey with the sale to be explicitly included in their offer. Best practice would also be for the seller to physically remove any questionable fixtures or personal property that they want to keep from the property prior to listing it for sale.