Tenant/Landlord Fence ownership issue

[BulletCatcher]

I'm not sure if this is the correct place to post this so if it belongs somewhere else on the forum, please feel free to move it.

That being said, here is my problem....

As the tenant, I installed a backyard fence at my own cost with the landlord's permission in the summer of 2006. No notification was given at that time by the landlord that if a fence was installed, it would become their property as it is considered a fixed improvement to the property.

I recently purchased a house and gave the landlord the required 60 day notice to vacate. Shortly after giving the notice the landlord's real estate agent came to the home to inform us that the landlord has decided to sell the property instead of renting it again. At this time, the agent toured the property and we informed him that we installed the fence ourself and we intened on taking it with us when we leave. The agent stated that he was not informed the fence did not belong to the landlord and that it was a selling point for him so he perferred that it stay on the property.

After this we attempted to contact the landlord via phone but never received a call back. We made several attempts since then to contact the landlord, both by phone and in writing concerning the fence but have received no reply. Yesterday (Thursday, January 10, 2008), the real estate agent dropped a letter off at the property from a Law firm stating that the fence was was considered a fixed improvement an therefore is to remain on the property. The agent also informed us at this time the house has been sold and the fence was part of the inclusions for the sale and that we are not to remove it.

I then called the landlord yet again and this time they called me back finally after a month and a half of trying. The landlord's stance is that it does not matter if we paid for the fence and installed it ourselves, the fence belongs to them. I reminded them that I paid for the fence out of my own pocket and nothing was said when the OK was given to install the fence that we would not be able to take it with us when we moved. The landlord stated it didn't matter that any fixed improvement made during the rental period is considerd permenant and property of the lessor and not the tenant no matter who pays for it.

I have checked the lease that we signed and there is nothing in the lease stating this. This combined with the fact that nothing was said when the OK was given leads me to believe that I am entiltled to fair compensation by the landlord for the improvement made to the property if I am not allowed to take what I paid for with me. Do I have just cause to seek payment from the landlord or am I out the price of the fence?

[Cynthetiq]

If you installed new lighting fixtures to the property, and didn't get it in WRITING and that information was presented to the potential buyer those lighting fixtures would be considered chattel to the property after the potential buyer viewed the property and made an offer.

If you don't have it in writing, it's his word against yours. And it's his property.

[braisler]

You are out for the fence. Renters have virtually no recourse in cases like this. Unless you have something in writing ahead of time. Take another example of asking your landlord if it is ok for you to paint the bedroom. You wouldn't think that the paint belonged to you afterwards.

The improvement to the property was something that you wanted.

Take it as a lesson learned.

[Bossnass]

I ran into a similar problem. Unless a written agreement is available, anything that requires a tool to be removed is a "leasehold improvement" and belongs to the owner. This happened in Alberta, but I imagine there are very similar rulings in the US.

[The_Jazz]

3 people above me have beat me to the punch. You don't have much to go on, although it might be possible to get some compensation for the fence if you ask nicely and the landlord is feeling generous. If he's not, you don't have much recourse.

[jorgelito]

Do you have a receipt? I don't see why you can't just take your fence with you.

[Fotzlid]

if they took the fence, they would be criminally liable.

what kind of fence was it that you want to take it with you?

[BulletCatcher]

Originally Posted by Fotzlid

if they took the fence, they would be criminally liable.

what kind of fence was it that you want to take it with you?

A 6' wood privacy fence. The cost of the panels and posts alone was $2200.

Oh well, thanks for the replies everyone. It's pretty much what I expected but I had hoped someone would know of a 'loophole' that I could use. Lesson learned.

[Cynthetiq]

Originally Posted by BulletCatcher

A 6' wood privacy fence. The cost of the panels and posts alone was $2200.

Oh well, thanks for the replies everyone. It's pretty much what I expected but I had hoped someone would know of a 'loophole' that I could use. Lesson learned.

Another I can think of is to speak with the buyers and see if you can present the reciept and information to them to see if they would let you take the fence when you move out.

If they don't care, then it wasn't a "selling point" as claimed by the sales agent.

[Ustwo]

You could paint it pink and blue before you leave.

[Cynthetiq]

A bit off topic but there are people who are more interested in making a home that suits them even if they do rent.

It is something that Skogafoss and I contemplated when she had a rent stabilized apartment in the Village. It was a nice sized place but the shower and vanity was in the bedroom and the living room had a small water closet for a toilet. Turned out we didn't have the stomach to sink in that much money into something we didn't know if we'd keep. Good thing too because we spent a good $25k on the place that we did end up buying in the Lower East Side.

April 15, 2007
Sinking Your Money Into a Rental
By VIVIAN S. TOY
NYTimes.com
PEOPLE buying a co-op or condo think nothing of putting in a new kitchen, adding a bathroom or moving a wall. They know that the work will only increase the property’s value.

Renters, on the other hand, will not spend a penny to improve an apartment because they know that someday they will leave it all behind. And unless they’re rent-regulated — and, these days, sometimes even if they are — they have no idea how long they can stay in one place.

That, at least, is the conventional wisdom.

But some renters have very clear ideas about how they want to live. And they will not let a lease or even market-rate rents get in the way. To them, sinking $5,000, $30,000, even $100,000 into their rental is money well spent.

When they signed the lease for a duplex they wanted in Greenwich Village three years ago, T. R. Pescod and Tim O’Brien knew that it would have to be gutted to suit them. It took four months and $100,000 to turn the apartment into the kind of home they wanted.

“The place was a mess, but the bones of the apartment were great,” said Mr. O’Brien, a hedge fund manager. “We looked at dozens of apartments to rent and buy, and we knew the value in this place, and if you amortize the cost of what we did over four years, it made sense economically.”

They first signed a two-year lease at $7,000 a month and then took an option to renew for another two years at $7,700. Other apartments they looked at rented for as much as $20,000 a month. Although they didn’t have an exact timetable, they figured their money would be better spent on renovating where they knew they could stay for at least four years.

“We didn’t sharpen our pencils to the month,” Mr. O’Brien said. “But looking at what else was out there, it was the choice between renovated space that wasn’t done well or in a way we liked and the opportunity to put our own mark on this.”

With vacancy rates for Manhattan rentals hovering around 1 percent, the scarcity may lead more renters to lease apartments that need work, make a deal with their landlords and then subsequently do the work themselves.

Mr. Pescod oversaw the work on the Greenwich Village duplex, which included putting in a new kitchen and two new bathrooms, building a closet in the second bedroom, installing new light fixtures throughout the apartment, putting a new awning on one of the terraces, building covers for all the radiators, replacing moldings, sanding the floors and painting the entire space. The result was a meticulously renovated apartment that gracefully maintains the character of the 19th-century brownstone.

Mr. Pescod, a model and actor, said that the decision to renovate was a very visceral one for him. “For me, this was all about the upstairs,” he said, referring to the top-floor master bedroom, which has a soaring ceiling, two terraces and a fireplace. “It’s an amazing space that’s flooded with light.”

It didn’t hurt, of course, that both men are serial renovators who have redesigned other apartments in Manhattan and houses in Southampton.

“Ultimately, you’re creating your home,” Mr. Pescod said. “You have to put that into the opportunity cost, too, because we were able to make this into a warm space that we can call our own.”

Friends thought they were crazy, he recalled, “but once they saw it and the benefits of living here in this unique space, they understood.” Mr. O’Brien said their landlady, Roberta Russell, was very open to their ideas and even agreed to chip in $10,000 for one of the bathrooms, which she had intended to fix for some time. They shared all their plans with her and showed her samples of materials along the way. The only thing that gave her pause, Mr. Pescod said, was the new closet, which she feared would take up too much space and might make the apartment harder to rent to new tenants.

Ms. Russell said that she and her husband, Harold Krieger, were very happy with the renovations. They own several brownstones in the Village and Chelsea and other property in upstate New York.

“We felt very lucky,” she said. “They had impeccable taste, and they had the discretionary income and the time to build it to suit, so it was worth it to them.”

But not all renovations are so successful. “We weren’t always this lucky,” Ms. Russell said. She said that she and her husband once had tenants who were months behind in their rent and went ahead with major renovations without permission.

“It was beautiful for them, but not good for the landlord because the changes were very unique to their lifestyle,” she recalled. “So when they left, we had to pay to undo what they had done.” The tenants had removed walls and created a sunken media room, among other things, she said.

As landlords go, Ms. Russell is probably more flexible than most in allowing Mr. Pescod and Mr. O’Brien to do as much work as they did.

Landlords typically frown on tenants’ doing their own renovations and generally require that apartments be returned to their original condition, with some allowances for wear and tear. Some building owners strongly advise against allowing renters to renovate. Frank Ricci, a spokesman for the Rent Stabilization Association, a landlords’ group, said: “For a renter, it would be foolish unless they have an ironclad contract that they can stay there for a set period of time. And speaking as an owner, I would not want a tenant, who has no financial stake in a building, contracting to do major work. I just wouldn’t recommend it."

Ogden CAP Properties, which owns and manages several very large Manhattan apartment buildings, allows major changes only with written consent.

“Some things could be considered an improvement that I could keep,” said John McDermott, Ogden’s senior manager for rental buildings. “But not everybody’s taste is the same, so in other cases, the tenant is responsible for putting things back the way they were.”

Amanda Miller, who lives in an Upper West Side building owned by Ogden, said that when she eventually moves out of her $3,000-a-month one-bedroom apartment, she will have no problem returning it to its original state. “Nothing I’ve done is permanent,” she said. “But everything I’ve done was designed to make this feel like a home. There’s no point in having a place that feels like a hospital room.”

Ms. Miller, a public relations executive, said she had spent about $4,500 to paint every room of her apartment, to replace the generic light fixtures with ones more to her liking, to retrofit three walk-in closets for her collection of vintage clothes and to build a closet for her 200-plus pairs of shoes.

What she has done certainly makes her apartment distinctive in an otherwise standard postwar building. The living room is painted claret red, the kitchen is pumpkin orange, the bedroom is pink, and the bathroom is a bright turquoise. She has a crystal chandelier in the bedroom, a Moroccan lamp in the hall and, in the living room, sconces that look like hands holding up torches.

“Just because I’m 28 and maybe not a real grown-up quite yet doesn’t mean I can’t create an environment for myself,” she said. “I go with this apartment, or maybe this apartment goes with me.”

Ms. Miller’s mother, Linda, said she was happy to help her daughter put her mark on the apartment and helped pay for some of the work. “So many people live in rentals in a temporary state of suspension, thinking: ‘Maybe I’ll only be a here a year,’ or ‘Maybe I’ll fall in love or get a job,’ ” she said. “But it should be about this being your moment and enjoying it right now.”

Just as Ms. Miller’s renovations largely revolved around her need to accommodate her passion for collecting vintage shoes and clothes, Ben Schechter and his partner, George Barimo, put about $30,000 into their East Side apartment to accommodate their art and antiques.

Mr. Schechter and Mr. Barimo have lived in their rent-stabilized apartment for 11 years and pay less than $2,000 a month, but they have been residents in the building since 1968 and put just as much work into their previous apartment. They both said they would have redone the apartments even if they had been paying market-rate rents.

“The world is so abrasive out there, I want to be able to leave the streets and be surrounded by things that are handcrafted and beautiful,” Mr. Schechter said. “This is an oasis for us.”

The renovations included putting up Sheetrock over a wall of glass brick that they found unappealing, building walls to partly enclose the living room and to create more wall space for their art, installing a decorative fireplace and 19th-century columns, and adding a hall closet and a wall of built-in shelves in the bedroom.

“A lot of the changes were made to accommodate our collecting,” said Mr. Schechter, a retired theater designer. “We had to personalize the space because an apartment should really be a backdrop for people, a place where they can feel comfortable.”

Mr. Barimo said that over the years, they have had opportunities to buy other apartments but opted instead for a country house in upstate New York. Mr. Barimo is a television producer and said that when the “Tonight” show moved to Los Angeles in 1972, he could have bought Doc Severinsen’s three-bedroom apartment on Riverside Drive for $38,000. And Mr. Schechter said there was a nine-room apartment that had been offered to them for $125,000 during the 1970s.

“We have no regrets because we never minded renting,” Mr. Schechter said. “In the end, what do you really own? We’re all just custodians of what we have.”

Finally, in a stratosphere all their own are buildings like the Waldorf Towers. There, rents range from $15,000 a month for a one-bedroom to $130,000 a month for a penthouse, and renovation requests are handled on a case-by-case basis, according to Margaret Bay, the broker from Brown Harris Stevens who handles all the building’s rentals. Apartments there have been home to the likes of Cole Porter, Frank Sinatra and Mamie Eisenhower.

In one $130,000-a-month apartment rented by a corporation, the tenant put an estimated $1 million into renovations, Ms. Bay said. The work included a new kitchen and the redesign of an entry rotunda with elaborate marble accents and murals of a Tuscan village. Nothing was done without the building’s approval, and when the corporation recently moved out after 15 years there, the Waldorf Towers wound up buying most of the furnishings.

Ms. Bay said another resident, whom she described as a Park Avenue socialite, completely renovated her six-bedroom apartment and then asked if she could install a lap pool.

“We worked on it for about a year to see if it could be done safely,” she said. “We tried to accommodate her, but it just couldn’t be done.”

[robot_parade]

Originally Posted by Cynthetiq

Another I can think of is to speak with the buyers and see if you can present the reciept and information to them to see if they would let you take the fence when you move out.

If they don't care, then it wasn't a "selling point" as claimed by the sales agent.

I don't think speaking to the buyers is really an option. The 'issue' is between him and the landlord. As far as I know, the fence is part of the property, and, like others said, the landlord owns it.

OTOH, a good lawyer might be able to turn things around. But good lawyers cost more than $2200. :-/

[Cynthetiq]

Originally Posted by robot_parade

I don't think speaking to the buyers is really an option. The 'issue' is between him and the landlord. As far as I know, the fence is part of the property, and, like others said, the landlord owns it.

OTOH, a good lawyer might be able to turn things around. But good lawyers cost more than $2200. :-/

why not? the buyers once they own the property own the fence and can do with it as they please.

[flstf]

Originally Posted by robot_parade

I don't think speaking to the buyers is really an option. The 'issue' is between him and the landlord. As far as I know, the fence is part of the property, and, like others said, the landlord owns it.

OTOH, a good lawyer might be able to turn things around. But good lawyers cost more than $2200. :-/

I wonder if you installed the fence badly or damaged it while you were living there if the owner could charge you to put in a new one or repair it? If the fence is a horrid looking thing that no one wants could the owner make you put in a better one? It would seem that the most the owner should be able to do is make you remove it and fill in the holes and put things just the way they were.

I know I am probably wrong but if you notified the owner in writing that you were taking it with you that should be good enough. The fact that the real estate agent thought that it was a good selling feature should not matter. Your obligation to the owner should be to leave the unit in it's original condition. Every property I have purchased had installed items listed that were not part of the package. The real estate agent should have listed the unit as fence not included.

[canuckguy]

That sucks man, i hope it all works out in the end. i personally would never spend that type of coin on a rental improvement. i distrust landlords so much i take pictures of EVERYTHING before i move in so there is no look what you did type of thing.

i don't think i could contain myself in this situation, what a jerk the landlord is for at least not giving you some cash to compensate for a large improvement to his house. i would just take the fence with me and let them come after me for it. just for spite lol.

[ngdawg]

You got the landlord's permission, but you didn't discuss the most important part-compensation and ownership. You're out the money as a result.
The landlord knew this and knew he wouldn't have to shell out anything for the improvement.
When we rented our first apartment, a 3rd floor walkup over a bar, we spoke with the landlord about painting and fixing it up and discussed the cost. We presented him with the receipts and he paid us back.
Never ever sink your own money into a rental's fixing up without complete discussion and agreement on who pays for what. When we got our second apartment, in a complex, we replaced the little refridgerator with one more to our liking and painted every room and wallpapered the kitchen and carpeted the bedroom. When we moved out, we took down the wallpaper and still have the fridge, telling the management that they would have to bring back the original after we left. We took the carpet too.
Because they had not painted over the previous tenants' horrid color choices, we were not liable for our color changes. We got back every cent of our security plus the interest. Communication upfront about who is responsible for what is paramount.
Almost forgot to mention, we also planted a garden of roses, flowers and vegetables with a rock border-had to leave all that behind.
Chalk this up to experience.

[BulletCatcher]

I have done a bit more research and have come across a couple of provisions in the ND Century Code that address both the definition of a fixed improvement and ownership of rental property that may be of some use though it is open to interpretation....

ND Century Code Section 47-01-05. Fixtures defined. A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs, or imbedded in it, as in the case of walls, or permanently resting upon it, as in the case of buildings, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.

The fence is not permanently attached to the property. It was installed with the intention of removing it when we leave and therefore no cement casings were used and the posts are setting loose in the ground.

ND Century Code Section 47-06-04. Fixtures - When tenant may remove. When a person affixes that person's property to the land of another without an agreement permitting that person to remove it, the thing affixed belongs to the owner of the land, unless the owner of the land chooses to require the former to remove it. A tenant may remove from the demised premises, anytime during the continuance of the tenant's term, anything affixed thereto, for the purpose of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has become an integral part of the premises by the manner in which it is affixed. When any tenant upon agricultural land shall have built, erected, or placed upon such leased premises during the tenant's tenancy, any grain bin, granary, or structure for the purpose of housing grain,
and no written agreement between the landlord and the tenant has been made as to its removal, the tenant may remove the same at any time within eight months after the termination of the tenant's lease and the vacating of said premises. The tenant shall not have said right of removal as against the owner or holder of any mortgage, deed, or conveyance which shall have been filed and recorded after the building, erection, or placing of such bin, granary, or structure, unless such tenant, within sixty days after such building, erecting, or placing, shall have filed in the office of the recorder a written notice describing the land, the character of the structure, and stating that the tenant intends to remove such structure as provided by law.

The first sentence pretty much says what I've been told so far. Once we put up the fence it became the LL property. But the second part seems to leave open the option for us to remove the item as long as we are still leasing the property which we are until the end of this month.

Once again, it's open to interpetation but it's a start.