Is This Mine? Everything You Need to Know About What Stays and
What Goes When Buying or Selling a Home
Believe it or
not, a seemingly inconsequential disagreement
over blue jacquard curtains can come between
you and the purchase or sale of a home. Unfortunately, when selling a home what goes
and what stays is an oft disputed topic
between homeowners and home buyers.
And while there are relevant legal
definitions aplenty, they tend to be either
vague or over inclusive, thus, largely unhelpful.
What Stays: In legalese these are called fixtures, which is everything permanently
attached to the property.
This means that if taking the item
would ruin or disfigure the walls, fencing,
porch, ceiling, and lawn, etc., it’s considered
a fixture and is included in the sale.
A more specific litmus test is whether
or not you need a tool to remove it. Simply put, if so, it stays.
Examples:
Built-in appliances, light fixtures, ceiling
fans, flowerbeds and shrubs, pool, plantation
shutters.
What Goes: Also known
as personal
property, if you can disconnect, unhook,
or otherwise detach an item from your home
with bare hands, it’s free to leave when
you do.
Personal property is almost never
assumed in the sale, but can be included
if the buyer and seller so stipulate.
Examples:
Free-standing appliances, pictures, furniture,
knick-knacks, potted plants, fountains.
These may sound obvious and not issue worthy,
but things can and do get sticky when talking
about matters of the heart or wallet.
While you (probably) wouldn’t dream
of ripping out kitchen cabinets or walking
off with the shower stalls, homeowners have
been known to dig up full grown trees planted
by their toddlers; pull down an heirloom
chandelier; or detach a custom fireplace
hearth.
Though each are clearly fixtures, some homeowners feel unable to part with
their treasures, despite the legalities
prohibiting their removal.
Gray Areas: To make matters worse, there tends to be confusion
over particular classes of items, which
can further blur the line between fixtures
and personal property.
Conversion: What happens
when personal property is converted to a
fixture? This covers all items severally acquired but
subsequently nailed, screwed, planted, or
otherwise attached to your home or yard.
Although the attachment clearly results
in a fixture, recognizing the time and nature
of conversion can be difficult ultimately
causing discrepancies.
Window
Treatments: Traditionally thought of as fixtures, window
treatments include curtain rods, cornices,
blinds, shutters, and shades. But what about other adornments?
Curtains, valances, liners and sheers
can slip easily off the rods, and garlands
and other creative window decor simply rest
on hooks.
While these seem to fall into two
categories of hardware (fixtures) and accessories
(personal property), the distinction remains
a source of controversy.
Appliances: Most appliances
are personal property that simply needs
unplugging before transport.
But others also require gas line
or water filtration hookups, begging the
question of whether such requirements switch
their status to fixtures.
Accessories: Some fixtures
such as pools and fireplaces need fireplace
tools, gas logs, and pool and spa chemicals
and cleaning equipment to function properly. These accessories are all considered personal
property.
On the flip side, a wall-mounted
cue stick holder or CD rack are fixtures
which accessorize personal property; namely
a pool table and CD collection, respectively. Conflict can arise when the accessories are
part of a coordinating set or otherwise
difficult to replace, prompting both buyers
and sellers to want to keep the sets partnered.
When in Doubt: If you’re unsure
about whether or not a particular item should
stay or go, ask your agent.
While even the agent may not know
its status, he or she can discuss the item
in question with the other agent and specify
your interests in the purchase contract.
Special Tips:
As a seller,
•
Don’t show the house with any fixtures you
intend to take. Replace them instead. Buyers can’t want what they never saw. But if they see something and find out it won’t
be part of the sale, they may not want the
house.
Caveat: Replace the
fixtures with something comparable.
A buyer might be turned off if you’ve
replaced all of your 21st century
stainless steel appliances with circa 70's
avocado green ones.
•
If it’s impossible or impractical to replace
an item that won’t be included in the sale,
make sure it’s clear to prospective buyers,
spelling it out in flyers, during open houses,
to their agents, etc.
As a buyer,
•
When listing the items you want to stay
in the house (both fixtures and personal
property), be specific in the purchase contract,
including makes, models, and even colors.
Including as many details as possible
avoids a bait and switch; or showing up
on moving day only to find the mailbox or
stove is missing.
•
Take care of these issues up-front, and
early on in the escrow process. Don’t leave it for closing or moving day.
•
As a last resort legal action is always
an option, but not necessarily a good one. This is especially true if none of your requests
were written into the purchase or other
relevant contract.
