§23.3 - Severance of Fixtures

• Jurisdiction: Washington

§23.3 SEVERANCE OF FIXTURES

A fixture may be severed from the realty by the owner thereof and thus regain its status as a chattel. Allied Stores Corp. v. N.W. Bank, 2 Wn.App. 778, 469 P.2d 993 (1970); Nelse Mortensen & Co. v. Treadwell, 217 F.2d 325 (9th Cir. 1954). Whether wrongful severance by someone who is neither the owner nor has the owner's authorization is effective to change the character of the article from realty to personalty has not been addressed in Washington and has not received uniform treatment among the various states. The majority rule seems to be that upon wrongful severance the fixture becomes personalty and continues to be the property of the owner of the realty. 35A AM. JUR. 2D Fixtures §112. As with annexation, severance may be either actual or constructive.

(1) Actual severance

Actual severance is simply the physical separation of the "fixture" from the realty to which it was formerly annexed by one entitled to take such action. It must be intended by the one making the severance that the dissolution of the union between chattel and realty be permanent. In the case of a temporary severance, without any such intention, it is likely that the articles in question will be held to remain realty pursuant to the doctrine of constructive annexation. Such a temporary severance could take the form of sending out for repair an...