Recently a colleague sat next to me at a lunch counter.
"How's business?" I asked.
"Couldn't be better ...", he replied, "but I've never had so many difficult buyers and sellers."
Then he described a recent sale for a modest home for which the attractive backyard garden was the primary sale feature. However, after the buyer's final walk-through the day before the sale, the seller removed the attractive concrete statue and potted plants, leaving the backyard almost desolate.
The purchase contract didn't mention the beautiful garden, the concrete birdbath or the statue, but the buyer assumed these were included in the sale. Morally, the buyer was probably entitled to the plants, etc., but because the items were not permanently attached fixtures, the seller legally was entitled to take them.
WHEN IS A FIXTURE INCLUDED IN A HOME SALE?
The law of fixtures determines when personal property has become converted into real property?
One example is fence boards. When the boards are lying by the side of a house, they are personal property. If that house is sold, the buyer is not entitled to those boards. However, if the seller used the boards to build a fence, since that fence is attached to the property, it is thereby converted into a fixture and is automatically included in the sale of the house.
Another example: A freestanding refrigerator in the kitchen is personal property and is not included in a home sale unless it is specifically included in the sales contract. However, a built-in refrigerator would be included because it has become a fixture that is part of the real property.
If the item is not permanently attached to the land or the structure, it remains personal property and is not included when the real estate is sold. However, if that same item were built-in, such as a dishwasher, or otherwise permanently attached, it becomes a fixture and is included in the sales price at no extra charge.
I will tell you the most troublesome fixture, for some unexplained reason, is the dining room chandelier. Legally, it is a fixture attached to the structure, but realistically, many home sellers seem to feel they are entitled to take their chandelier with them.
FOUR TESTS OF A FIXTURE
When a dispute arises, there are four legal tests to determine if personal property has become a fixture:
The method of attachment.
When an item is nailed, bolted, glued, wired, built-in, cemented or planted, the personal property has become a fixture. However, if the item can be easily removed without damage, such as unplugging a refrigerator or a TV, it remains personal property and is not included in the sale.
Window coverings often cause trouble. Since drapes can be easily unhooked for the drapery rods, they remain personal property. However, because the rods and window blinds are bolted to the wall, they become included, home-sale features.
Floor coverings cause similar problems. Obviously, an oriental rug is the seller's personal property, but wall-to-wall carpet is nailed or tacked, which converts it into a fixture.
Well-written home-sales contracts cover these troublesome items, as well as outdoor TV antennas and mailboxes. If the buyer wants personal property included in the sale, it must be specified in the contract. Otherwise, it remains personal property.
Adaptability for use with the property.
If items have been specifically adapted to the property, such as built-in stereo speakers or drapes that are shaped for an unusual window, they have be come fixtures. For example, the seller should leave the built-in stereo speakers but take the freestanding stereo.
Intent of the buyer and seller.
The third test is the intent of the parties, usually expressed in writing. However, conduct also helps determine intent.
For example, if the listing says "attractive swimming pool," that indicates the seller tends to include the above-ground pool.
Agreement of the parties.
Realtors®, such as myself, use the listing form that has been approved by the Colorado Real Estate Commission which has a clause specifically addressing this issue. Specific inclusions and exclusions are written into the contract.
Be specific about the dining room chandelier. Otherwise, it's included.