2020 Georgia Code
Title 44 - Property
Chapter 7 - Landlord and Tenant
Article 1 - In General
§ 44-7-12. Removal of Trade Fixtures During Term; When Abandoned

During the term of his tenancy or any continuation thereof or while he is in possession under the landlord, a tenant may remove trade fixtures erected by him. After the term and his possession are ended, any trade fixtures remaining will be regarded as abandoned for the use of the landlord and will become the landlord's property.

(Civil Code 1895, § 3120; Civil Code 1910, § 3696; Code 1933, § 61-110.)

- For article discussing lawful removal of fixtures by tenant, see 4 Ga. B.J. 16 (1942). For article on the law governing the removal of trade fixtures from property in Georgia, see 19 Ga. B.J. 35 (1956). For article discussing U.C.C. provisions establishing a security interest in fixtures as a means of protecting sellers, see 16 Mercer L. Rev. 404 (1965). For article discussing origin and construction of Georgia provision concerning tenant's rights to fixtures constructed by him, see 14 Ga. L. Rev. 239 (1980). For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982).

JUDICIAL DECISIONS

Section is exception to general rule.

- Tenant cannot remove fixtures annexed to the freehold, which the tenant has placed on the land, and the exception to this rule exists only in the case of trade fixtures. Armour & Co. v. Block, 147 Ga. 639, 95 S.E. 228 (1918).

- Statute is to be construed to refer only to trade fixtures. Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669 (1902); Raymond v. Strickland, 124 Ga. 504, 52 S.E. 619, 3 L.R.A. (n.s.) 69 (1905) (see O.C.G.A. § 44-7-12).

- See Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669 (1902); Raymond v. Strickland, 124 Ga. 504, 52 S.E. 619, 3 L.R.A. (n.s.) 69 (1905); Currin v. Milhollin, 53 Ga. App. 270, 185 S.E. 380 (1936); Chouinard v. Leah Enters., Inc., 205 Ga. App. 206, 422 S.E.2d 204 (1992).

- Trover suit for possession of buildings will not lie against the purchaser of the land, although such purchaser took with notice of a specific agreement between the plaintiff and the defendant's predecessor in title that the buildings were to remain personal property and fixtures and be removable. Adams v. Chamberlin, 54 Ga. App. 459, 188 S.E. 550 (1936).

- When a lease of land for use as a filling station provided that the lessee shall have the right to erect on the land "such buildings, pumps, underground tanks and other improvements as may be necessary and incident to the conduct of a filling station for the dispensing of petroleum products, tires and automobile accessories," that "all improvements erected on said land by the lessee shall revert and be the property of the lessor," and that the lessor agrees to pay "all taxes on the land and improvements," the stipulation that the improvements shall become the property of the lessor refers only to improvements in the realty itself and does not apply to a mere chattel used by the lessee in connection with the lessee's business. Irvin v. Smith, 185 Ga. 386, 194 S.E. 906 (1938).

- In a suit in trover to recover certain shelving supplied by the tenant for use in the rented property, the lease having expired, it could not be recovered, even as trade fixtures, if attached to the realty. Powell v. Griffith, 38 Ga. App. 40, 142 S.E. 466 (1928).

While two owners of an aircraft hangar had no formal agreement with the city entitling the owners to extend their stay on city property, and the city could therefore elect to remove the owners at any time as tenants at will, the owners were obligated to remove any trade fixtures from the landlord's property, specifically, the hangar, despite the hangar's size, and at the owners own expense, upon notification by the city of the expiration of the lease term; moreover, the hangar was such that although the hangar was bolted to the ground, it was done so in such a way that the hangar could be disassembled and rebuilt elsewhere. S.S. Air, Inc. v. City of Vidalia, 278 Ga. App. 149, 628 S.E.2d 117 (2006).

Brick and roofing material remaining after a fire which were a part of a kiln and lumber sheds erected and used by the tenant in carrying on a lumberyard business are trade fixtures. Ory v. Tate, 211 Ga. 256, 85 S.E.2d 36 (1954).

- Depot building, erected by a railroad, not for the purpose of improving the inheritance, but to aid and assist the company in carrying on the company's business, is a trade fixture, and a tenant may remove such fixtures before the expiration of the tenant's term; but after having forfeited the tenant's estate in the land, and having abandoned the tenant's possession, the railroad could not remove such fixtures. Carr v. Georgia R.R., 74 Ga. 73 (1884).

- When by an agreement the landlord erected a smokehouse for the tenant upon the tenant paying $4,000.00, the smokehouse became "a trade fixture" which could be removed by the tenant. Armour & Co. v. Block, 147 Ga. 639, 95 S.E. 228 (1918).

An air compressor used to furnish free air at a filling station is a trade fixture. Rucker v. Hunt, 44 Ga. App. 836, 163 S.E. 612 (1932).

- Domestic or ornamental fixtures which a tenant has attached to a dwellinghouse or the grounds on which the dwellinghouse is located, to promote the tenant's domestic comfort, and which may be easily severed and made equally useful to the tenant in another house, may be removed by the tenant's during the tenant's term. Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669 (1902).

- Tenant may remove domestic and ornamental fixtures during the tenant's term, but cannot remove the fixtures after the term's expiration without the landlord's consent unless the tenant remains in possession of the premises under right to still be considered the landlord's tenant. Youngblood & Harris v. Eubanks, 68 Ga. 630 (1882); Raymond v. Strickland, 124 Ga. 504, 52 S.E. 619 (1905).

Landlord's acceptance of rent during pendency of dispossessory proceedings pursuant to consent agreement with tenant did not amount to acquiescence by landlord of tenant's possession and tenant had no right to remove trade fixtures once the tenant's rightful possession of the premises ended. Chouinard v. Leah Enters., Inc., 205 Ga. App. 206, 422 S.E.2d 204, cert. denied, 205 Ga. App. 899, 422 S.E.2d 204 (1992).

Trial court erred by granting the landlord summary judgment on the tenant's claims for conversion and reasonable hire as well as any associated claims for punitive damages and attorneys' fees because a genuine issue of material fact existed as to whether the landlord, in exchange for money from the tenant, agreed to extend the tenant's time of possession and thereby the tenant's right to the trade fixtures. Heany v. Bennett Street Properties, L.P., 336 Ga. App. 290, 785 S.E.2d 1 (2016).

- Any wrongful act or refusal on the part of the landlord with respect to the removal of the tenant's fixtures amounts to a conversion for which an action will lie. Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669 (1902); Richards v. Gilbert, 116 Ga. 382, 42 S.E. 715 (1902).

Personalty which has not become a fixture remains the property of the tenant; although the personalty may be left in the building, it is not by the fact alone to be treated as abandoned to the landlord. Cozart v. Johnson, 181 Ga. 337, 182 S.E. 502 (1935).

- See Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669 (1902); Raymond v. Strickland, 124 Ga. 504, 52 S.E. 619, 3 L.R.A. (n.s.) 69 (1905).

- Trial court erred by granting the landlord summary judgment on the security interest holder's claims for conversion and reasonable hire as for some reasonable period of time, the holder's security interest in the items took priority over whatever interest the landlord might have received under O.C.G.A. § 44-7-12 when the landlord took possession of the premises and what a reasonable time constituted was not subject to summary judgment. Heany v. Bennett Street Properties, L.P., 336 Ga. App. 290, 785 S.E.2d 1 (2016).

Cited in Stokes v. First Ga. Bank, 500 F.2d 393 (5th Cir. 1974); Turner Communications Corp. v. Hickcox, 161 Ga. App. 79, 289 S.E.2d 260 (1982); Benton v. Georgia Marble Co., 258 Ga. 58, 365 S.E.2d 413 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Compensation for condemned fixtures.

- In a condemnation proceeding in which there exists a landlord-tenant relationship, those fixtures which are physically or constructively made a part of the realty, even those which were placed there by the tenant, are to be considered as a part of the realty and property of the landowner; the tenant would not be allowed compensation for such fixtures unless the tenant had, by previous agreement, entered into a written agreement with the landlord that these fixtures were to be considered as personalty of the tenant; the only exception to this rule would be in those cases in which the tenant was engaged in some trade or business and the fixtures in question were used as part of the tenant's business or trade and could be considered as trade fixtures. 1969 Op. Att'y Gen. No. 69-122.

- State Highway Department (now Department of Transportation), being a condemning authority, stands in the position of a grantee and the principle of law applicable to trade fixtures has no bearing on the rights of the condemnor; if fixtures exist on property which is being condemned at the time of the condemnation and the condemnation describes the property condemned sufficient to include the fixtures, upon a judgment of condemnation the fixtures become property of the State of Georgia; it is insignificant and immaterial in this event that the fixtures may have been trade fixtures. 1967 Op. Att'y Gen. No. 67-127.

- Trade fixtures are considered as property of the tenant; in any condemnation proceeding, the tenant is eligible for relocation moving expenses for trade fixtures. 1969 Op. Att'y Gen. No. 69-122.