§ 2A—309. Lessor’s and lessee’s rights when goods become fixtures
(1) In this section:
(a) goods are “fixtures” when they become so related to particular real estate that an
interest in them arises under real estate law;
(b) a “fixture filing” is the filing, in the office where a record of a mortgage on the
real estate would be filed or recorded, of a financing statement covering goods that
are or are to become fixtures and conforming to the requirements of section 9—502(a)
and (b) of this title;
(c) a lease is a “purchase money lease” unless the lessee has possession or use of the
goods or the right to possession or use of the goods before the lease agreement is
enforceable;
(d) a mortgage is a “construction mortgage” to the extent it secures an obligation incurred
for the construction of an improvement on land including the acquisition cost of the
land, if the recorded writing so indicates; and
(e) “encumbrance” includes real estate mortgages and other liens on real estate and all
other rights in real estate that are not ownership interests.
(2) Under this article a lease may be of goods that are fixtures or may continue in goods
that become fixtures, but no lease exists under this article of ordinary building
materials incorporated into an improvement on land.
(3) This article does not prevent creation of a lease of fixtures pursuant to real estate
law.
(4) The perfected interest of a lessor of fixtures has priority over a conflicting interest
of an encumbrancer or owner of the real estate if:
(a) the lease is a purchase money lease, the conflicting interest of the encumbrancer
or owner arises before the goods become fixtures, the interest of the lessor is perfected
by a fixture filing before the goods become fixtures or within ten days thereafter,
and the lessee has an interest of record in the real estate or is in possession of
the real estate; or
(b) the interest of the lessor is perfected by a fixture filing before the interest of
the encumbrancer or owner is of record, the lessor’s interest has priority over any
conflicting interest of a predecessor in title of the encumbrancer or owner, and the
lessee has an interest of record in the real estate or is in possession of the real
estate.
(5) The interest of a lessor of fixtures, whether or not perfected, has priority over
the conflicting interest of an encumbrancer or owner of the real estate if:
(a) the fixtures are readily removable factory or office machines, readily removable equipment
that is not primarily used or leased for use in the operation of the real estate,
or readily removable replacements of domestic appliances that are goods subject to
a consumer lease, and before the goods become fixtures the lease contract is enforceable;
or
(b) the conflicting interest is a lien on the real estate obtained by legal or equitable
proceedings after the lease contract is enforceable; or
(c) the encumbrancer or owner has consented in writing to the lease or has disclaimed
an interest in the goods as fixtures; or
(d) the lessee has a right to remove the goods as against the encumbrancer or owner. If
the lessee’s right to remove terminates, the priority of the interest of the lessor
continues for a reasonable time.
(6) Notwithstanding paragraph (4)(a) of this section but otherwise subject to subsections
(4) and (5) of this section, the interest of a lessor of fixtures, including the lessor’s
residual interest, is subordinate to the conflicting interest of an encumbrancer of
the real estate under a construction mortgage recorded before the goods become fixtures
if the goods become fixtures before the completion of the construction. To the extent
given to refinance a construction mortgage, the conflicting interest of an encumbrancer
of the real estate under a mortgage has this priority to the same extent as the encumbrancer
of the real estate under the construction mortgage.
(7) In cases not within the preceding subsections, priority between the interest of a
lessor of fixtures, including the lessor’s residual interest, and the conflicting
interest of an encumbrancer or owner of the real estate who is not the lessee is determined
by the priority rules governing conflicting interests in real estate.
(8) If the interest of a lessor of fixtures, including the lessor’s residual interest,
has priority over all conflicting interests of all owners and encumbrancers of the
real estate, the lessor or the lessee may (i) on default, expiration, termination,
or cancellation of the lease agreement but subject to agreement and this article,
or (ii) if necessary to enforce other rights and remedies of the lessor or lessee
under this article, remove the goods from the real estate, free and clear of all conflicting
interests of all owners and encumbrancers of the real estate, but the lessor or lessee
must reimburse any encumbrancer or owner of the real estate who is not the lessee
and who has not otherwise agreed for the cost of repair of any physical injury, but
not for any diminution in value of the real estate caused by the absence of the goods
removed or by any necessity of replacing them. A person entitled to reimbursement
may refuse permission to remove until the party seeking removal gives adequate security
for the performance of this obligation.
(9) Even though the lease agreement does not create a security interest, the interest
of a lessor of fixtures, including the lessor’s residual interest, is perfected by
filing a financing statement as a fixture filing for leased goods that are or are
to become fixtures in accordance with the relevant provisions of the article on Secured
Transactions (Article 9). (Added 1993, No. 158 (Adj. Sess.), § 10, eff. Jan. 1, 1995; amended 1999, No. 106 (Adj. Sess.), § 13, eff. July 1, 2001.)