What’s a Fixture vs Personal Property
What Stays and Goes in a Home Sale
Occasionally in a home sale there are situations that can be very frustrating for a buyer or a seller, situations that should be avoidable. One potentially frustrating occurrence often arises in relation to “fixtures” in a home – items that are considered part of the house and therefore part of the sale. When a seller removes something that the buyer expected to get with the house, it can create significant tension and lead to resentment, and maybe even legal proceedings.
Any good Realtor should be well aware of the problems that can arise over the definition of fixtures in a home, and should prepare appropriately in the sales process. By getting clear from the start on what fixtures are versus personal property, the Realtor can help everyone enjoy a smoother transaction.
Many consumers have no idea what is considered a fixture and what is considered personal property. In fact many real estate agents are to blame for blurring the lines between these two things by “excluding” things in a listing agreement that don’t need to be excluded!
For example unless a washer and dryer is “built in” it does not need to be excluded as it is considered “personal property” and not part of the home. Refrigerators are also considered personal property unless they are built-in to the cabinetry like a “Sub-Zero”. This creates confusion on the part of the consumer when fixtures and personal property are treated in the same fashion.
Keep reading and you will see a comprehensive discussion on what is considered personal property and what is considered “real estate” or part of the property when selling a home.
What’s A Fixture?
A fixture is legally considered something like decorations, equipment or appliances that have been attached to the house. Fixtures are considered part of the property and it is a given that they will go to the buyer along with the rest of the property.
For instance, if you were to buy a house from a seller and discovered that he had removed all the door knobs when he moved out, you’d understandably be angry. The doorknobs are part of the house, and are definitely something you expected to get when you spent hundreds of thousands of dollars on it. Fortunately, sellers rarely run off with doorknobs. They are obviously fixtures, and obviously are included in the sale. But there are other things that you as a buyer may consider fixtures that the seller does not.
There are a few ways to look at fixtures in a home to determine their status, including:
Attachments
When something is screwed, nailed or glued to the walls, ceiling or floors, it can generally be considered an attachment. Even if you can technically remove the item, it may still be considered an attachment – things like custom cabinets, built-in speakers, etc.
Integral
The item may also be something that is generally considered an integral part of a home, like a refrigerator (if built in), cooking range, or a porch swing.
Guidance from the Greater Boston Real Estate Board
The Greater Boston Real Estate Board standard purchase and sale agreement has language that discusses what is and is not a fixture. The language is very helpful because it outlines in detail for both the buyer and seller what is and is not part of the property. There is a clear definition of what conveys and what does not.
“Included in the sale as part of said premises are the buildings, structures, and improvements now thereon, and the fixtures belonging to the SELLER and used in connection therewith, including, if any, all wall-to-wall carpeting, drapery rods, automatic garage doors openers, Venetian blinds, window shades, screens, screen doors, storm windows and doors, awnings, shutters, furnaces, heaters, heating equipment, stoves, ranges, oil and gas burners and fixtures appurtenant thereto, hot water heaters, plumbing and bathroom fixtures, garbage disposals, electric and other lighting fixtures, mantels, outside television antennas, fences, gates, trees, shrubs, plants, and ONLY IF BUILT IN, refrigerators, air conditioning equipment, ventilators, dishwashers, washing machines and dryer; and but excluding _______.”
How Personal Property And Fixtures Can Become Confused
It is not hard to imagine how the line between fixture and personal property could become muddled. If a home had an alcove above the stove that contained a high-end microwave, the buyer may imagine that the appliance comes with the house, especially if the microwave looked to be a part of the style of all the appliances in the kitchen. But the seller might have just bought the microwave to replace an old one. It’s not physically attached to the house, just sitting in its alcove. All he has to do is unplug it and take it when he leaves.
A few years ago while selling a home in Southborough Mass, a seller decided to take the control box for an underground dog fence. Needless to say it was not excluded and the buyer was very unhappy about it. These are the kind of things that can add quite a bit of stress to a real estate transaction.
Items That Cause The Most Issues
You would expect that the items that cause the most issues in a real estate transaction are the ones that have some grey area. These are the kind of items that could be considered real property or personal property. Some examples are:- Window treatments – this is one of my biggest pet peeves because it seems so many real estate agents do not grasp the concept. Curtains and drapes are considered personal property and do not stay with a home. Rods and blinds, however are attached and therefore stay with the home.
- A swing set – This can go either way because some swing sets are just sitting in the grass. This would be considered personal property as it is not attached to anything. A swing set however that is cemented into the ground would be considered a fixture or part of the property.
- A basketball hoop – the same can be said for a basketball hope. It goes without saying that if the hoop is cemented into the driveway it will stay with the home unless excluded from the sale. A free standing hoop however, would be considered personal property.
- A mirror – this should be simple but often times it is not. If the mirror is bolted to the wall it stays. If it is hanging on a hook it does not stay with the home.
- A wall mounted television – this is another one that really can be grey to a lot of people. Wall mounted televisions should be excluded if an owner desires to take them. Keep in mind anything bolted, screwed in or attached to a wall is considered part of the house! A sub issue that often times surfaces with wall mounted televisions is how the holes in the wall that are left behind will be addressed. Do not assume anything here when buying a home. If you want the holes patched this is something that should be addressed up front and agreed to in writing by the parties.
- Lights – this one is one my list not because it is hard to distinguish that they are part of a home but because a lot of home owners forget to exclude lights they want to take with them. Some sneaky owners will take a light and put another in it’s place thinking the buyer will not remember. This is not a good way to conduct yourself in a real estate transaction but it happens.
- Dog fence – this is an interesting one only because some sellers think it is perfectly acceptable to take the unit that powers the underground wiring. This is something that should become an exclusion.
Clarifying What Is What
When a Realtor goes to list a home, he or she should be extremely thorough in defining what is included in the home sale. When the listing is put up, it should contain all the fixtures that are excluded from the sale. I will repeat again when excluding items from a sale, personal property should not be included as it creates further confusion.
The same attention to detail must be applied when the Offer to Purchase is drafted. When the multiple listing service is thorough and exact in its descriptions of what comes with the house, it can then be referred to later in the Offer to Purchase. The same information on what is included in the sale and what is excluded in the sale must be made clear in the offer.
Make Sure You And Your Realtor Are On The Same Page
If you are going to sell your house, you want to make sure that you and your Realtor are always on the same page. A good real estate agent should be checking in with you, especially at the beginning of the sale, to make sure you understand what is going on and that your wishes are being honored in the sales process.
What is included and excluded should be discussed before the home is ever listed and it makes its way to the public.
When you talk to your Realtor about the listing, bring up the idea of clarifying what you consider personal property and what you consider fixtures, so that the Realtor can include all this information in the listing. After the listing is up, the real estate agent can also keep in mind any areas where confusion might arise and address them during the sales process with the buyers agent.
The last thing you want to be involved in is a situation where the buyer wants to back out of the home sale. This is stress that can be easily avoided!
Other Important Clarifications
One of the other bones of contention that often comes up in a home sale are extraneous things that the seller decides they should leave behind for the buyer to have. Sometimes the buyer loves the fact that these things are left behind and other times they want them gone. What kind of items am I talking about?
- Paint – some buyers want all the paint left behind to do touch ups while others have no use for it and want it removed.
- Extra tile – again sometimes people want extra tiles to stay and other times they plan on removing what is there.
- Gardening items, pesticides, etc – some buyers love to have these things, while others don’t.
- Wood – Some sellers see leaving wood for burning in the fireplace or wood stove as a major plus.
- Miscellaneous items – anything that can be used around the house like garden houses, garbage cans, household cleaners, etc.
The point here is you should never take anything for granted when it comes to leaving items behind. A buyer should always be asked if they want anything left behind that is considered personal property.
Do a Final Walk Through
When you are buying a home it is always advisable to do a final walk through. One of the major purposes of doing so is to make sure that everything in the home is the same as when you signed your contact with the seller. While most buyers are looking for issues like a mover dinging a wall or other potential structural or mechanical issues, looking over what was supposed to be included is important as well.
Over my twenty eight years of selling real estate there have been a handful of occasions where something was taken that shouldn’t have been. In fact one time the seller had already left the state with all of their belongings on a truck and decided they wanted two lights that were not excluded.
The buyer of course wanted them and would not settle for what the seller put in their place. It took some wrangling of course with the attorneys but a holdback agreement was made where by the seller would not get a couple thousand dollars of their proceeds until the lights were returned to the buyers. This is just another reason that a final walk through should never be skipped!
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