Section 45.12.309. Lessor's and lessee's rights when goods become fixtures.

   (a) Under this chapter a lease may be of goods that are fixtures or may continue in goods that become fixtures, but a lease does not exist under this chapter of ordinary building materials incorporated into an improvement on land.
   (b) This chapter does not prevent creation of a lease of fixtures under real estate law.
   (c) The perfected interest of a lessor of fixtures has priority over a conflicting interest of an encumbrancer or owner of the real estate if
        (1) 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 10 days after becoming fixtures, and the lessee has an interest of record in the real estate or is in possession of the real estate; or
        (2) 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 a 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.
   (d) 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
        (1) 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;
        (2) the conflicting interest is a lien on the real estate obtained by legal or equitable proceedings after the lease contract is enforceable;
        (3) the encumbrancer or owner has consented in writing to the lease or has disclaimed an interest in the goods as fixtures; or
        (4) 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.
   (e) Notwithstanding (c)(1) of this section but otherwise subject to (c) and (d) 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.
   (f) In cases not within (a) - (e) of this section, 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.
   (g) Subject to (h) of this section, if the interest of a lessor of fixtures, including the lessor's residual interest, has priority over all conflicting interests of all owners and encumbrances of the real estate, the lessor or the lessee may 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 the lessee must reimburse an encumbrancer or owner of the real estate who is not the lessee and who has not otherwise agreed, for the cost of repair of physical injury, but not for a diminution in value of the real estate caused by the absence of the goods removed or by a 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.
   (h) The lessor or the lessee may remove the goods under (g) of this section
        (1) on default, expiration, termination, or cancellation of the lease agreement but subject to the lease agreement and this chapter; or
        (2) if necessary to enforce other rights and remedies of the lessor or the lessee under this chapter.
   (i) 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 recording a financing statement as a fixture filing for leased goods that are or are to become fixtures under the relevant provisions of AS 45.29 on secured transactions.
   (j) In this section,
        (1) "encumbrance" includes real estate mortgages and other liens on real estate and all other rights in real estate that are not ownership interests;
        (2) a "fixture filing" is the recording, in the office where a mortgage on the real estate would be recorded, of a financing statement covering goods that are or are to become fixtures and conforming to the requirements of AS 45.29.502(a) and (b);
        (3) "fixtures" means goods that become so related to particular real estate that an interest in them arises under real estate law;
        (4) 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; and
        (5) a mortgage is a "construction mortgage" to the extent that it secures an obligation incurred for the construction of an improvement on land including the acquisition cost of the land if the recorded writing indicates.

Authorities

45.12.103

Notes

References

AS 45.12.103 Definitions and index of definitions.

History

(Sec. 125 ch 35 SLA 1993; am Sec. 30 ch 113 SLA 2000)