Appeal from the Circuit Court of Winnebago County. No. 95--MR--64 Honorable J. Todd Kennedy, Judge, Presiding.
The opinion of the court was delivered by: Justice Colwell
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
On March 23, 1994, Jim Drager, of the defendant Office of the State Fire Marshall (Fire Marshall), issued an administrative order to Clifford Trickie, requiring him to register and remove out-of-use underground storage tanks (USTs) at Cliff's Restaurant. Trickie objected that he was not the owner of the tanks, and Drager researched the prior ownership of the property and concluded that plaintiff, Lillian Griffiths, was the party responsible for registering and removing the tanks. Plaintiff was issued an order requiring her to do so, and she appealed to the Fire Marshall. The hearing officer concluded that Griffiths was the owner of the tanks because they were fixtures that became part of the real estate. Griffiths filed a complaint for administrative review, and the circuit court upheld the Fire Marshall's decision. Griffiths now appeals, arguing that (1) the USTs are trade fixtures and thus she is not the owner of the USTs for purposes of the registration and removal requirements, and, alternatively, (2) with respect to the removal requirement, it is contrary to common law to impose upon a person without possession the duty to correct a condition on the premises, and the regulations do not specifically provide for such a result. We reverse and remand.
The parties are familiar with the relevant facts and they will not be repeated in detail here. The essential facts are that on September 11, 1958, plaintiff leased vacant property to Owen Brown under a 20-year lease. Brown opened a service station on the property and installed the USTs. At various times over the next several years, Coil Oil Company, Smith Oil Company, and Sun Oil company operated at the site. Brown testified that he assigned his rights under the 20-year lease to Coil Oil and he believed that Coil Oil later assigned its rights to Smith Oil. However, these assignments were never recorded. There was a memorandum recorded in 1977 that showed that Sun Oil was relinquishing its rights under the 1958 Brown Lease. Additionally, the Fire Marshall produced evidence showing that deliveries from Torch Oil Company were made to Stateline Truck Stop at the premises in 1978. There was no evidence that the tanks were used after 1978. Plaintiff entered into an agreement for deed with Trickie in 1983, but the property was not officially deeded to him until June 1, 1987.
The hearing officer concluded that plaintiff owned the tanks at the relevant time because they were fixtures of the property and thus part of the real estate. The hearing officer relied on section 4(e) of the Gasoline Storage Act (430 ILCS 15/4(e) (West 1996)), which adopts the Federal definition of an "owner" of a UST. The definition applicable to this case is as follows:
"[I]n the case of any underground storage tank in use before November 8, 1984, but no longer in use on November 8, 1984, any person who owned such tank immediately before the discontinuation of its use." (Emphasis added.) 42 U.S.C.A. §6991(3)(B) (West 1995).
According to the hearing officer, because the USTs were fixtures of the property, the owner of the real estate at the relevant time, plaintiff, was the owner of the tanks.
Plaintiff's principal contention on appeal is that, if the USTs are fixtures, they are trade fixtures, which remain the personal property of the tenant until and unless they are abandoned. Thus, plaintiff argues, under the applicable definition she could not be the owner of the tanks because she would not have gained any ownership until the tanks were abandoned, while the definition looks to who owned them immediately before the discontinuation of their use.
Defendant argues that plaintiff is raising the trade fixtures argument for the first time on appeal and has thus waived it. We reject this contention for two reasons. First, the hearing officer based her decision on the law of fixtures, and thus it was her responsibility to consider fully the applicable law. Second, the record shows that at both the administrative hearing and in the circuit court plaintiff argued that the USTs remained the personal property of the tenant. Whether or not she used the term "trade fixtures," this is a trade fixtures argument. Thus, we do not believe plaintiff waived her right to rely on this argument.
In Empire Building Corp. v. Orput & Associates, Inc., 32 Ill. App. 3d 839, 841 (1975), we explained the law of trade fixtures as follows:
"In disputes between the landlord and tenant there is a presumption that the tenant, by annexing fixtures, did so for his own benefit and not to enrich the freehold, and the law accordingly construes the tenant's right to remove his annexations liberally, at least where removal may be effected without material injury to the freehold." [Citations.]
"Articles annexed to the realty by a tenant for the purpose of carrying on a trade are ordinarily removable by him during his term [citations], unless the removal would substantially injure the freehold."
We also noted that "an article may generally be regarded as a trade fixture if it is annexed for the purpose of aiding in the conduct by the tenant of a calling exercised on the leased premises for the purposes of pecuniary profit." Empire Building, 32 Ill. App. 3d at 841. We have also applied a three-part test that looks at (1) the means by which the item has been annexed to the real estate; (2) whether it is adapted to and necessary for the purpose to which the premises is devoted; and (3) the intent of the parties. B. Kreisman & Co. v. First Arlington National Bank, 91 Ill. App. 3d 847, 852 (1980). The most important of these factors is the parties' intent. B. Kreisman, 91 Ill. App. 3d at 852.
The clear weight of authority is that USTs are trade fixtures. See, e.g., Sgro v. Getty Petroleum Corp., 854 F. Supp. 1164, 1179-80 (D.N.J. 1994) (collecting cases), aff'd, 96 F.3d 1434 (3d Cir. 1996); Shell Oil Co. v. Capparelli, 648 F. Supp. 1052, 1055 (S.D.N.Y. 1986); Lee-Moore Oil Co. v. Cleary, 295 N.C. 417, 424-27, 245 S.E.2d 720, 725-26 (1978); Ilderton Oil Co. v. Riggs, 13 N.C. App. 547, 549-50, 186 S.E.2d 691, 693 (1972); First National Bank v. Reese, 356 Pa. 175, 178-79, 51 A.2d 806, 808 (1947); Bence v. Spinato, 196 Wis. 2d 398, 409, 538 N.W.2d 614, 617 (1995) ("It is generally recognized, and undisputed by both parties, that underground fuel tanks installed by a lessee constitute 'trade fixtures' "); Standard Oil Co. v. La Crosse Super Auto Service, Inc., 217 Wis. 237, __, 258 N.W. 791, 794 (1935). Although the Illinois Supreme Court has not ruled on the issue, it has held that 1,388 feet of well casing embedded and cemented into the ground for oil and gas ...