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20. The court should decide that the scientist may remove
The new owner promptly brought an appropriate action to enjoin the scientist from removing those items.
Last month, by legal description of the land, the businessman conveyed Homeacre to a new owner for $100,000. The new owner knew of the scientist's soon-expiring tenancy, but did not examine the written lease. As the lease expiration date approached, the new owner learned that the scientist planned to vacate on schedule, and learned for the first time that she claimed and planned to remove all of the above-listed items that she had installed.
The scientist decided that the house needed, and she paid cash to have installed, standard-sized combination screen/storm windows, a freestanding refrigerator to fit a kitchen alcove built for that purpose, a built-in electric stove and oven to fit a kitchen counter opening left for that purpose, and carpeting to cover the plywood living room floor.
A little more than five years ago, a businessman completed construction of a single-family home located on Homeacre, a lot that the businessman owned. Five years ago, the businessman and a scientist entered into a valid five-year written lease of Homeacre that included the following language: «This house is rented as is, without certain necessary or useful items. The parties agree that the scientist may acquire and install such items as she wishes at her expense, and that she may remove them if she wishes at the termination of this lease.»
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In both types of ownership cases, where the items become incorporated into the realty so fully that they lose their identity, they become part of the realty. Similarly, where identification of the chattel is still possible, but removal would cause considerable loss or destruction, the items are considered fixtures (like heating pipes in a house).
An agreement between the landlord and tenant is controlling on the determination of whether the chattel annexed to the premises was intended to become a fixture. In the absence of an agreement to the contrary, a tenant may remove chattel that he has attached to the premises as long as the removal does not leave unrepaired damage to the premises or cause the virtual destruction of the chattel. In other words, the tenant will not have manifested an intention to permanently improve the freehold as long as the removal of the chattel does not substantially damage the premises or destroy the chattel. This removal must occur before the end of the lease term, and the tenant does have a duty to repair damages resulting from the removal of the chattel.
D is correct. When the businessman leased Homeacre to the scientist, it contained an express provision that the scientist was permitted to «acquire and install such items as she wishes at her expense, and that she may remove them if she wishes at the termination of this lease.» Typically, absent an agreement to the contrary, any chattel that the scientist affixed to the property for improvement would have to remain if its removal would cause considerable loss or construction. The scientist added windows, a refrigerator, stove, oven, and carpeting, many of which, if removed, could cause extensive damage. Normally a court would examine each item and consider the degree to which it is attached, the level of damage to the structure if it is removed, and whether general custom dictates that such an item should stay with the property. However, this determination is unnecessary because the parties agreed that the scientist could remove any of the items she installed at the lease termination, and that provision will prevail over the general rule.
A is incorrect. This answer choice implies that all the items installed by the scientist would be non-removable given their level of attachment and how integral they are to the structure (i.e., fixtures), and the extent of damage that would result from their removal. This analysis would be necessary if the general rule applied here. However, as explained above, where the parties have an explicit agreement to the contrary, that will govern over the general rule.
B is incorrect. This answer choice implies that only the refrigerator may be taken, likely because its removal will not cause considerable damage, and it may simply be unplugged and carried out. However, the refrigerator may be removed because ALL of the items contractually may be removed, irrespective of how difficult or damaging they would be to uninstall. As such, this choice is only partially correct.
C is incorrect. As with the rest of the items, the carpeting installed by the scientist, no matter how attached or important it is to the home, or how much damage may be caused by removing it, may be properly removed by the scientist because of her pre-existing agreement with the businessman.