|This is critical in determining what personal property stays with the real property (see paragraph 2, TREC One-to-Four Contract). If the item is permanently attached to the property, it becomes a fixture and cannot be removed. If, however, the item maintains its character as “personalty”, it is not considered a fixture and may be removed by the Seller.
A “fixture” is defined as a permanent part of the realty. Whether an item of personal property has been so permanently attached as to constitute realty is a question of fact.
Three factors are relevant in determining whether personal property has become a fixture.
1. The mode and sufficiency of annexation, either real or constructive. Key Question: Will the property be damaged by removal? If so, to what extent?
2. The adaptation of the item to the use or purpose of the realty. Key Question: Is the item customized for the property, or is it standard?
3. The intention of the party who annexed the item to the realty. Key Question: Was the installation intended to be permanent or temporary?
The party’s intention is the predominant factor, while the first two factors constitute evidence of that intention. Testimony of intention will not prevail, however, in the face of undisputed evidence to the contrary.
Logan v. Mullis, 686 S.W.2d 605 (Tex. 1985).