We also again observed that the appellee's legal argument had been presented to the court in written memoranda and acquiescence to the entry of an order partly in his favor did not affirmatively waive or abandon it. The most recent case in which we considered the effect of a “WE ASK FOR THIS” endorsement was Lamar Corp. v. City of Richmond, 241 Va. 346, 402 S.E.2d 31 (1991). However, our analysisdid not addressCode § 8.01–384(A).

We disagree with Lamar's arguments. [2-3] We have adopted the general rule that as between a condemnor and a lessee, structures such as billboards that are affixed to land but owned by the lessee are realty. Lamar Corp. v. City of Richmond, 241 Va. 346, 351, 402 S.E.2d 31, 34 (1991); Foodtown, Inc. v. State Highway Commissioner, 213 Va. 760, 763, 195 S.E.2d 883, 886 (1973). The fact that the billboard is "realty," however, does not mean that the lessee is entitled to participate in a valuation proceeding to the same extent as the owner of the underlying land.

Under Virginia law, determining whether a particular chattel becomes a fixture or remains personalty involves the weighing of three factors: "`(1) the degree of permanency with which the chattels are annexed to the realty; (2) the adaptation of the chattels to the use or purpose to which the realty is devoted; and (3) the intention of the owner of the chattels to make them a permanent accession to the [property].'" Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 553 (4th Cir. 1994) (quoting Lamar Corp. v. City of Richmond, 402 S.E.2d 31, 34 (Va. 1991)). "Of these factors, `the intention of the party making the annexation is the paramount and controlling consideration.'"

(1) the degree of permanency with which the chattels are annexed to the realty; (2) the adaptation of the chattels to the use or purpose to which the realty is devoted; and (3) the intention of the owner of the chattels to make them a permanent accession to the [property].Lamar Corp. v. City of Richmond, 241 Va. 346, 402 S.E.2d 31, 34 (1991) (citing Danville Holding Corp. v. Clement, 178 Va. 223, 16 S.E.2d 345, 349 (1941)). Of these factors, "the intention of the party making the annexation is the paramount and controlling consideration."

CompareDanville Holding , 16 S.E.2d at 351 (machinery "securely fastened to the floor of the building"); In re Alterman , 127 B.R. at 361 (animal cages in veterinary hospital building "secured to the wall or to each other"); Lamar Corp. v. City of Richmond , 241 Va. 346, 402 S.E.2d 31, 34 (1991) (billboards "supported by steel poles, three feet and five feet in diameter" with the "supporting poles" "encased in concrete slabs, ... extending underground over thirteen feet"); Adams Outdoor Advert. Ltd. P'ship v. Long , 253 Va. 206, 483 S.E.2d 224, 226 (1997) (billboards "permanently affixed to the land"); United States Fire Ins. Co. v. Martin , 222 Va. 301, 282 S.E.2d 2, 3 (1981) (air conditioning compressors "built into the building"); Transcon. Gas Pipe Line Corp. v. Prince William Cnty. , 210 Va. 550, 172 S.E.2d 757, 762 (1970) (gas mains "buried in the ground") withIn re Ryerson , 519 B.R. 275, 289 (Bankr. D. Idaho 2014) (holding that two "monumental bronze" sculptures "rest[ing]" on "concrete pads in the gardens outside the residence" were "personal and movable works of art, and are not fixtures"); McBride v. Commonwealth , 2003 WL 21788936, at *2 (Va. Ct. App. Aug. 5, 2003) (affirming that an electric air compressor was personal property when "connection to the building wa

As the Court stated in its prior Opinion, under Virginia law, lessees of property are entitled to compensation for the value of their leasehold interest. Exxon Corp. v. M Q Holding Corp., 221 Va. 274, 269 S.E.2d 371 (1980); see also Lamar Corp. v. City of Richmond, 241 Va. 346, 402 S.E.2d 31, 34 (1991) (stating that once title to the property passes to the condemner, the lessee becomes entitled to a share of the total award and to a subsequent proceeding to determine the appropriate amount of that share). Both the landlord and the tenant have a constitutionally protected "property" interest when leased property is taken in eminent domain.

Lessees of property, however, are entitled to compensation for the value of their leasehold interest. Exxon Corp. v. M Q Holding Corp., 221 Va. 274, 269 S.E.2d 371 (1980); Lamar Corp. v. City of Richmond, 241 Va. 346, 402 S.E.2d 31, 34 (1991) (stating that once title to the property passes to the condemnor, the lessee becomes entitled to a share of the total award and to a subsequent proceeding to determine the appropriate amount of that share). When the condemned property is subject to a lease, the value of the lessee's interest should first be determined and deducted from the award, and the balance then allocated to the landowner.

In a dispute with a condemning authority, we treat lessees differently than fee simple owners and find that "as between the condemnor and lessee, structures attached to the condemned real estate but owned by the lessee are realty ... even though, as between the landlord and lessee, the structures may be personalty." Lamar Corp. v. City of Richmond , 241 Va. 346, 351, 402 S.E.2d 31, 34 (1991) ; see also Lamar Corp. v. Commonwealth Transp. Comm'r , 262 Va. 375, 382, 552 S.E.2d 61, 64 (2001) ; Exxon Corp. v. M & Q Holding Corp. , 221 Va. 274, 281, 269 S.E.2d 371, 376 (1980) ; Norfolk S. Ry. v. American Oil Co. , 214 Va. 194, 199-200, 198 S.E.2d 607, 611 (1973) ; Foodtown, Inc. v. State Highway Comm'r , 213 Va. 760, 763-64, 195 S.E.2d 883, 886 (1973). Finally, the County turns to Livingston , our most recent pronouncement on these issues.

While due process considerations may attach, they pertain to an interest in the proper distribution of the rents, proceeds, and profits from the property, not in the property itself. Cf. Lamar Corp. v. City of Richmond, 241 Va. 346, 349-50, 402 S.E.2d 31, 33 (1991). In this regard, the interest of the land trustee beneficiary is analogous to that of one who holds stock in a corporation.

In a dispute with a condemning authority, we treat lessees differently than fee simple owners and find that "as between the condemnor and lessee, structures attached to the condemned real estate but owned by the lessee are realty . . . even though, as between the landlord and lessee, the structures may be personalty." Lamar Corp. v. City of Richmond, 241 Va. 346, 351, 402 S.E.2d 31, 34 (1991); see also Lamar Corp. v. Commonwealth Transp. Comm'r, 262 Va. 375, 382, 552 S.E.2d 61, 64 (2001); Exxon Corp. v. M & Q Holding Corp., 221 Va. 274, 281, 269 S.E.2d 371, 376 (1980); Norfolk S. Ry. v. American Oil Co., 214 Va. 194, 199-200, 198 S.E.2d 607, 611 (1973); Foodtown, Inc. v. State Highway Comm'r, 213 Va. 760, 763-64, 195 S.E.2d 883, 886 (1973). Finally, the County turns to Livingston, our most recent pronouncement on these issues.