Fixed property? KY

[mcmedic828]

In KY. First hello to all on the site.

I have searched the net till I'm at my wits end so hope someone here can help with some info. If I need to post in a different section please let me know.
My wife and I have purchased her family farm from her dads estate. On said farm my father in law had a carport constructed on site and securely anchored to the ground to replace a barn that expired years ago to protect his farm equipment and such from the elements. After thinking we were about ready to do the final settlement of the estate next month and have all of this behind us one of her sisters has now come up saying she wants to buy the carport for herself. As far as we are concerned this is fixed property and was included in the sale of the farm, no different than if it had been a barn. We checked and this item was never included in the final inventory list of property turned in to the lawyer and signed by all three siblings to be sold by all three of them acting as executrices of the trust. This could end up being settled in court and I would like an idea of where we stand. I do know my father in law had this item anchored securely to remain a part of the farm with no intention of ever removing it. So would this be considered a fixture of the farm?

 

[OHRoadwarrior]

Many KY city ordinances and manufactures treat carports as a permanent structure. The method it is secured by indicates the same. I do not see they have any right to detach the carport from the property. Check the tax department, it is likely treated and taxed as an improvement.

 

[LdiJ]

In KY. First hello to all on the site.

I have searched the net till I'm at my wits end so hope someone here can help with some info. If I need to post in a different section please let me know.
My wife and I have purchased her family farm from her dads estate. On said farm my father in law had a carport constructed on site and securely anchored to the ground to replace a barn that expired years ago to protect his farm equipment and such from the elements. After thinking we were about ready to do the final settlement of the estate next month and have all of this behind us one of her sisters has now come up saying she wants to buy the carport for herself. As far as we are concerned this is fixed property and was included in the sale of the farm, no different than if it had been a barn. We checked and this item was never included in the final inventory list of property turned in to the lawyer and signed by all three siblings to be sold by all three of them acting as executrices of the trust. This could end up being settled in court and I would like an idea of where we stand. I do know my father in law had this item anchored securely to remain a part of the farm with no intention of ever removing it. So would this be considered a fixture of the farm?

I also think that it is a fixture of the farm. I do not believe that it is a separate asset subject to being sold separately.

 

[mcmedic828]

Thanks for the opinions, I'm just trying to see where we stand if it ends up having to go before the court to be settled, although I know you never know what a judge is thinking.

 

[LdiJ]

Thanks for the opinions, I'm just trying to see where we stand if it ends up having to go before the court to be settled, although I know you never know what a judge is thinking.

What I don't understand is why she even wants the carport. I would think that the cost of purchasing it, taking it down, transporting it to another location and then putting it back together would be just as expensive, if not more expensive, than simply building her own.

 

[tranquility]

Intention is important, but father is dead and we won't be able to tell what his intent was without looking at the facts. If the carport was attached in a way that looks intended to be permanent, that is a good sign of intent. If it is just bolted to something and the bolts can easily be removed without damaging anything, that is less of a sign. What a fixture is, while easy to state the words, it much harder to apply the facts to. You must judge for yourself as to what you think a court would decide based on all the evidence.

 

[latigo]

In KY. First hello to all on the site.

I have searched the net till I'm at my wits end so hope someone here can help with some info. If I need to post in a different section please let me know.

My wife and I have purchased her family farm from her dads estate. On said farm my father in law had a carport constructed on site and securely anchored to the ground to replace a barn that expired years ago to protect his farm equipment and such from the elements.

After thinking we were about ready to do the final settlement of the estate next month and have all of this behind us one of her sisters has now come up saying she wants to buy the carport for herself.

As far as we are concerned this is fixed property and was included in the sale of the farm, no different than if it had been a barn. We checked and this item was never included in the final inventory list of property turned in to the lawyer and signed by all three siblings to be sold by all three of them acting as executrices of the trust.

This could end up being settled in court and I would like an idea of where we stand.

I do know my father in law had this item anchored securely to remain a part of the farm with no intention of ever removing it. So would this be considered a fixture of the farm?

It makes no difference if it is a “farm” or a sewage plant. Nor does it make any difference where located, Kentucky, Montana, etceteras.

If the structure is constructed and situated as you say, then it is deemed affixed and appurtenant to the land and passes with the title to the land.

So tell the “sister” to park her buggy under a large tree as she ain’t going to buy it; no more than the outhouse, the root cellar nor the kitchen sink. (That is unless you put them up for sale.)

 

[tranquility]

Batson v. Clark, 980 SW 2d 566 - Ky: Court of Appeals 1998

LAMAR ADVANTAGE GP COMPANY, LLC v. NIGHSWANDER, Ky: Court of Appeals 2011

The trial court analyzed the character of the building under Tarter v. Turpin, Ky., 291 S.W.2d 547 (1956), and noted the three factors that must be examined when determining whether an article is a fixture:

First, annexation to realty, either actual or constructive; second, adaptation or application 574*574 to the use or purpose that the part of the realty to which it is connected is appropriated; and, third, the intention of the parties to make the article a permanent accession to the freehold with title to the article in the one owning the freehold.

Id. at 548. (Citation omitted). The Tarter court emphasized that the key factor is the intention of the parties. Id. (citing American Rolling Mill Co. v. Carol Mining, 282 Ky. 64, 137 S.W.2d 725 (1940)). Further, "as between landlord and tenant[,] the greatest latitude and indulgence is given to the claim that fixtures attached to the realty by the tenant remain personal property." Warren Post No. 23, Am. Legion v. Jones, 302 Ky. 861, 196 S.W.2d 726, 729 (1946) (citations omitted).

To determine whether an article is a permanent fixture or a trade fixture, courts look to three factors:

First, annexation to realty, either actual or constructive; second, adaptation or application to the use or purpose that the part of the realty to which it is connected is appropriated; and third, the intention of the parties to make the article a permanent accession to the freehold with title to the article in the one owning the freehold. Batson v. Clark, 980 S.W.2d 566, 573-74 (Ky.App. 1998) (citation omitted). Generally, the controlling factor is the intention of the parties. See Am. Rolling Mill Co. v. Carol Mining Co., 282 Ky. 64, 67, 137 S.W.2d 725, 727 (Ky. 1940).

Intention can

be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made; which, obviously, suggests that the other tests are really part of this comprehensive test of intention, and that they derive their chief value as conspicuous evidence of such intention.

 

[mcmedic828]

What I don't understand is why she even wants the carport. I would think that the cost of purchasing it, taking it down, transporting it to another location and then putting it back together would be just as expensive, if not more expensive, than simply building her own.

You just have to know this woman then you would understand. She lives in Indiana and would have to transport it probably 80 miles to get it home. Not to mention when the houses in town were sold there was a carport constructed there and she had no problem with that one remaining and being sold with the real estate. We think it all boils down to her trying to extend the settlement as long as possible to try to put us in a bind financially since we really need our portion of the settlement to help with things to be able to afford the farm payments. I'm sure if we bowed down to her and offered to pay her for it she would accept it just to get more money out of us, but that isn't going to happen as we feel we are in the right with our reasoning.

 

[mcmedic828]

Just thought I would give an update, my wife's other sister talked to the one we had problems with and came right out and told her she and her husband agreed with us and as far as they were concerned the carport was never in question and was part of the farm and was sold with it. After this she made her a small cash offer just to drop it and she agreed. Pretty much shows wanting the carport wasn't the true reason for all the fuss anyway. So anyway hopefully it is all agreed on now and we will be able to go ahead and do the final settlement of the estate soon. Thanks to everyone that took the time to respond.