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United Benefit Life Ins., Co. v. Norman Lumber Co - 1971 OK 52, 484 P.2d 527

Rule:

In determining whether an item is lienable, the test is whether the article or item is permanently affixed to the realty or as set out in Okla. Stat. tit. 60, § 7 (1961), or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws.

Facts:

Plaintiff in error mortgagee appealed the decision of the Cleveland County District Court (Oklahoma), which entered judgment for defendants in error, two materialmen in their action to foreclose their materialman's liens. This appeal involved a materialmen's lien foreclosure case tried without a jury. It was held that defendant CAP Interiors had a valid lien upon the carpet and carpet pads in the six homes foreclosed; that the defendant Norman Lumber Company had a valid lien upon materials furnished; and that plaintiff in error, United Benefit Life Insurance Co.'s mortgage was inferior to said liens. 

Issue:

Were the carpet and carpet pads lienable items?

Answer:

Yes

Conclusion:

The court affirmed the judgment, finding that the test to determine if an article or item was realty or personalty was whether it was permanently affixed to the realty. The carpet was intended by the owner to stay affixed to the realty and was lienable. if the carpet was removed the ground floor would then be a concrete slab, the second floor an unfinished rough plywood. The glue used to hold down the carpet was a long lasting glue and the tacks were used with great frequency. The carpet was not excepted from the mortgage. The carpet pad would be destroyed if removed. From the circumstances in this case it was apparent that the owner intended that the carpet stay affixed to the realty and as such was a lienable item as the carpet and pads were an improvement upon the property in conformance with the test set out in Peaceable Creek Coal Co. v. Jackson, 26 Okl. 1, 108 P. 409, which provided that the word "improvement" was used in its ordinary and general sense, and included any and every character of improvement upon realty.

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