On June 9, 2011, the Virginia Supreme Court held that whether equipment within a condemned business is personal property (therefore not valued as part of the take) or a fixture (therefore valued as part of the take) is a question for the condemnation jury, not the trial court. The holding was the crux of its opinion in a Virginia Department of Transportation condemnation case, Taco Bell of America, Inc. v. Commonwealth Transportation Commissioner of Virginia.

The import of the opinion is being hotly debated in the press and elsewhere. However, the Supreme Court’s opinion was quite limited.

Supreme Court opinion did not alter the test in Virginia for determining whether equipment is fixtures in Virginia. Rather, the opinion quoted and applied the long-standing test in Virginia for determining whether equipment is considered fixtures from Danville Holding Corp. v. Clement, 178 Va. 223, 16 S.E.2d 345 (1941).