This issue rears it’s ugly head on occasion, and I saw it happen yet again. The Multiple Listing Service property input included moveable appliances in the “equipment” category, the subsequent (accepted) offer did not include the washer, dryer or refrigerator as personal property to convey, and at close of escrow the buyer was surprised to find big, gaping voids where these items once resided.
It’s you old “theirs versus ours” dilemma. We have a brief rundown of items which are considered fixtures versus personal property here, but it is worth repeating. When it comes to the stuff in the house, fixtures convey unless they are explicitly excluded in the contract. Personal property, on the other hand, goes away with the seller’s U-Haul unless specifically included. In between, there is a vast gray area.
The popular test for fixture versus personal property is the method of attachment, and even here you can get yourself into some trouble. If the bookshelves are attached with eighty-seven anchor bolts, the buyer will soon be assuming the dusting duties. On the other hand, if the eighty-seven photos in the hallway recounting the building of Fenway Park are affixed with penny nails and coat hangers, the buyer can (thankfully) kiss these good-bye. A simple toggle bolt can send everyone straight to mediation, so it is better to write the pot rack in or out just to be sure.
This is the language in the current version of the California Association of Realtors Residential Purchase Agreement (updated hourly):
NOTE TO BUYER AND SELLER: Items listed as included or excluded in the MLS, flyers or marketing materials are not included in the purchase price or excluded from the sale unless specified (below).
ITEMS INCLUDED IN SALE:
(1) All EXISTING fixtures and fittings that are attached to the Property;
(2) Existing electrical, mechanical, lighting, plumbing and heating fixtures, ceiling fans, fireplace inserts, gas logs and grates, solar systems, built-in appliances, window and door screens, awnings, shutters, window coverings, attached floor coverings, television antennas, satellite dishes, private integrated telephone systems, air coolers/conditions, pool/spa equipment, garage door openers/remote controls, mailbox, in-ground landscaping, tress shrubs, water softeners, water purifiers, security systems/alarms.
Of course, every item in this list is here because someone at some point tried to pack it up on their way out of Dodge. As goofy as some of these items may seem, Steve and I actually watched with amusement as a neighbor, during his escrow (not our listing), started removing palm trees from his front yard under the cover of darkness. We had to assume that they had some sentimental value. And, don’t gloss over the word “existing.” We even had one situation where our buyer came to the final walk-through and found that light fixtures, switch plates and even the microwave oven had been replaced by not-so-like likenesses.
Now, back to the fridge. No one can argue that a refrigerator is a fixture. In other parts of the country, it is quite customary to ditch the appliances when selling a home. In San Diego, however, it is more common to take them with you. The MLS is an offer of compensation to the broker who brings the buyer; it is not a contract between principals. The MLS remarks may indicate that the home comes with the washer and dryer, the Toro lawnmower on the side yard, and a pony, but unless the buyer writes these things into the contract, it is being taken strictly on faith.
{ 8 comments… read them below or add one }
Phil Hoover
05.21.08 at 8:05 pm
I once had a seller remove all of the light bulbs after the buyer had done his walk through
In Boise, the fridge, washer, and dryer are considered personal property.
It gets interesting when the fridge is one of those cool models with matching wood panels and appears built-in.
I wrote an offer today for a home that has one of those and specified that it stays, despite it not being mentioned as included in MLS.
All of which reminds me that I LOVE real estate.
It’s just the people who buy and sell it who drive me nuts!
Kris Berg
05.22.08 at 6:43 am
Light bulbs? Now that’s a new record in petty!
Greg Broadbent
05.22.08 at 8:49 am
One of my first transactions my sellers changed out all the ceiling fans (4) after the buyers had written an offer. This was in retaliation because they (and I ) believe they stole something valuable during a showing with their agent. Unfortunately they were so desperate to sell the home they still went with these buyers and had to give a credit at closing for the fans. The replacements were nice but they didn’t all match like the old ones.
Now I use a form that has a checklist of everything in the house and I make them sign if they stay or go. There are no MAYBE‘s. That way everyone is very clear from the start.
Ken Smith
05.22.08 at 11:27 am
The one we have run into issues with as of late is floating shelves. They are attached normally in a fairly permanent way to the home and really should stay. Yet for some reason sellers seem to want to take these with as if they are some high value item.
The large items are easy to make sure you don’t forget to address in the contract. It’s the small items that are easier to overlook like the floating shelves or pot racks.
Melina Tomson
05.23.08 at 1:46 pm
In Oregon fridge, washer and dryer are not considered fixtures and are negotiated in the contracts.
I have had clients that had compact florescent bulbs in and wanted to take them with and I just required that they remove them from the fixtures and replace with regular incandescents prior to listing.
The biggest issue I have had is the argument over window coverings (functional for privacy) vs. window treatments (purely decorative with no function). Many people have treatments like a swag to match their furniture and want to taken them with them when they move and they are excluded in the MLS listing.
I also have a mini checklist that I do with my sellers, and I do ask if they have an sentimental bushes/plants they want to take with them. It is pretty common out here. We just tag them so the buyers know that “tagged plants” will be going with the seller.
Kris Berg
05.23.08 at 2:10 pm
Tagging plants? That’s funny. We are typically so attached to our plants in San Diego. But, ah, the window “treatments.” It is regularly a point of contention.
Kris Berg
05.23.08 at 3:02 pm
Make that “aren’t” attached to our plants. Darn typos.
Sabrina
05.27.08 at 1:33 pm
Buyers need to take pictures of the fixtures, appliances, fans, trees, etc. so in case the seller pulls a fast one there will be proof that a judge can see.