One of the biggest sources of misunderstanding in the sale of a home is what stays with the home and what goes with the seller. At the time of sale, fixtures transfer to the new owner with the property unless they are specifically excluded in the purchase contract. Sounds simple enough but just what is a fixture? Look at this list of items and see what you think is a fixture and should stay with the house: dining room chandelier, furnace, dishwasher, window air conditioner, refrigerator, area rug, water heater and countertop microwave. The items that should stay with the house are the dining room chandelier, the furnace, the dishwasher and the water heater. The window air conditioner, refrigerator, area rug and countertop microwave are all considered personal property of the seller and he is free to take them out of the house.
So just what is a “fixture” in real estate? A fixture is personal property permanently attached to the structure or land. For example, a dining room chandelier new in the box is personal property but once it is installed and wired into the ceiling it becomes a fixture. A pile of lumber in the backyard is personal property but once it is used to build a deck attached to the house it becomes a fixture. Area rugs are not usually permanently attached and are considered personal property but wall to wall carpeting would be considered a fixture. A window air conditioner can be easily removed and is personal property but a central air conditioner unit is attached to the home and is a fixture. You can see how misunderstandings can occur between what stays and what goes in a real estate transaction.
When a dispute arises and a court becomes involved there are five rules used to decide whether an item is a fixture or not. 1. The method of attachment. If the item is attached by bolts, nails, cement or other permanent method it is a fixture. 2. Adaptability for use with the property. For example, built in surround sound speakers in the walls or ceilings are meant to stay with the home they are in but a stereo receiver sitting on a shelf would be personal property. 3. Intent of the buyer and seller. If a listing for a home includes an above ground swimming pool, the intent of the seller would be to leave the pool with the house. The pool equipment however, could be considered personal property. 4. Agreement of the parties. Most sales contracts provide for fixtures to be sold with the home. If the seller wants something excluded it should be stated in the contract. For example, if the seller plans on taking the dining room chandelier it should be specified in the contract. 5. Relationship of the parties. In most court cases the buyer is favored over the seller and the tenant is favored over the landlord.
The best way to avoid disputes over what stays and what goes is to be specific in the sales contract. If you are a buyer you should make sure you are requesting any items you wish to stay with the property. If there is a refrigerator in the kitchen and another one in the basement, specify which one you want to stay or if you want both of them ask for the 2 refrigerators. If there are blinds and drapes on the windows make sure you request blinds and drapes on the contract. “Window coverings” may not always include both blinds and drapes so make sure you ask for them specifically. Fireplace equipment is personal property so if you want it to stay, put it in the contract. An electric fireplace that plugs in the wall may not be a fixture so if you want it, write it in the contract.
If you are a seller and you plan on removing fixtures when you sell, remove them before you list your house. If you want to take your antique chandelier and replace it with one from Menards then do it before it goes on the market. As soon as you call attention to something that doesn’t stay in the listing, the buyer will want it- it ís human nature to want what you can’t have. If you are taking your new stainless steel refrigerator and saying you will replace it , the buyer will not be happy with the used white one you leave in it’s place. Buyer’s will want what they can’t have so to avoid problems, remove these things before it goes on the market. Plants and flowers outside are considered fixtures unless they are in movable pots. Don’t plan on digging up all your roses when you leave unless the buyer has given you permission to do so.
Avoiding the ‘fixture wars’ between buyers and sellers can be much easier if everything is spelled out in the sales contract. Neither side should assume something stays or goes. Put it in writing and have a happier closing.