When is personal property a fixture?
For some reason, in the last two weeks I have had to handle two cases where, at the walk-through a chandelier and draperies went missing. One was particularly troubling because the chandelier was a wedding gift from the seller’s mother. Therefore, I thought I would write you a note about the law on fixtures versus personal property.
The case law regarding the disposition of fixtures is very unclear, so much so that one court called it "amorphous" at best, which means that there is a lot of room for error andpotential liability for a Realtorwho gives bad advice.
The case law states that a particular item (chandelier, sink, cook top, refrigerator, etc.) is considered a "fixture" when it is "physically annexed or affixed to the realty." Additionally, if a fixture is in the property on the effective date, it must be left at closing.
A simple rule for most cases is that when the item is screwed or nailed to the building, then it must stay.
In the case of the chandelier, if it is hanging from the ceiling, it is a fixture and must be left behind. The draperies are a much closer case. Whether they are fixtures could matter how they are attached to the property. If they are just hanging on hooks, they are not permanently attached and likely not fixtures.
To solve the problem that fixtures create, both the NABOR and FAR/BAR contract attempt to handle the issue contractually. However, the FAR/BAR contract is far superior in how it handles this issue. The NABOR contract stated that “window coverings" must be left but does not define what a window covering is, such that you could take the draperies but leave the shades. To clarify the issue on the NABOR form, the specific items must be written in. The FAR/BAR contract, with its checkboxes, clearly allows the seller and buyer to negotiate the specific items and check them off on the contract so each parties intent is clear.
In order to solve the “fixture" problem, I offer two practice tips:
- Whenever possible remove all items from your listing that will not convey with the property before you show it. Then you have no confusion. The gets what they see.
- Often the property is occupied and you cannot remove all the fixtures the seller intends to keep. In that case, have a conversation with your seller about what they intend to leave and clearly note in the MLS what stays and what goes. Also, do not have your client sign the contract until this question has been resolved.
As always, if you have any questions, call me and I will walk through the issue with you. I don't charge for simple questions like this. Kind Regards,
Sam J. Saad III
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