Ah, the personal versus real property dilemma. We all know what a fixture is, right? There is the real estate agent definition – If you can pick it up and haul it out, it’s yours. There is the dictionary definition – “An item of movable property so incorporated into real property that it may be regarded as legally a part of it”. Then, there is the definition we learn in our licensing courses, which is something along the lines of – An appurtenant item permanently attached to the structure in a manner that it can be considered an integral part thereof.
I had cause for exasperation this week when an agent for the buyer of one of our listings decided to challenge me on this issue. She was so full of conviction (full of something, anyway), that she suggested ended up giving me some helpful business advice. No doubt in the spirit of cooperation, she suggested I “consult my attorneys”.
On an almost daily basis, I am exasperated, so this is nothing new. And that frustration usually results from the absurd roles I invariable end up playing during the course of a transaction. I have swept garages, I have bartered furniture on my client’s behalf, and I have attended a client’s garage sale and not only bought their stuff but helped sell what I didn’t buy. ( I’m still smarting that I didn’t grab that gently used Mystery Date game while I had the chance), I’ve, of course, met the plumber, yet I have been the plumber; I have taken out trash, cleaned out refrigerators, and cleaned out toilets. While this latest frustration didn’t involve manual labor, it frustrated me no less.
So I ask you, just in case I am missing something, which of the following would you consider to be a fixture versus personal property in the transfer of real property?
Option (a) was a gimme. The microwave oven is clearly built in, and the contract is very clear on this point. Option (b) was likely not much of a challenge for you either, although I will go on record as saying that the sellers would undoubtedly have considered throwing Clarence into the deal had they been asked. If you picked Option (c), I am going to have to argue with you as I did with this agent. I pointed out that these are simply Pottery Barn decorator items, to which she replied, “My client recognized
them as West Elm, not Pottery Barn, and she likes them.” Shucks, I like a lot of things I can’t have.
Keeping in mind that each shelf has two small screws holding it in place, Steve pointed out that half of our personal belongings are hanging on our walls and in a similar fashion. For instance, my daughter created a lovely charcoal drawing of a bird of paradise in 3rd grade that, when framed, was so heavy, we had to secure it with a toggle. It (gasp) involved screws! While I would love for this little work of art to remain when we move someday (sorry, Becky), I don’t think it is reasonable that my buyer will be insisting it is a fixture. My hairdryer? Screwed to the wall. Our mirror in the dining room which has, when you look very closely, etchings of very naked people all over the frame (I swear we didn’t see this when we bought it)? Bolted to the wall like a mother! Our future buyer can have this too, by the way, but not my blow dryer.
Where did reason and common sense go in this process? Give me a break. And, vote now.
Franz says:
Kris… I hear ya… but… everything I’ve ever been told says those shelves are fixtures, along with your hair dryer.
In my experience, if it’s some personal crap like a kid’s art project, buyers don’t care if you take it. But if you take something decent and leave holes in its place… watch out! When in doubt, specify in contract.
January 8, 2007 — 6:28 pm
Jim Duncan says:
It’s the screws. If they were the kind that had the little needles that stick into the wall, I would be on your side. But it’s the screws.
Either way, it’s the little things that tend to cause buyers and sellers to lose it a little.
January 8, 2007 — 6:33 pm
Kris Berg says:
Blasphemy! Are you saying that if nails are holding them up, it is different? I don’t agree. There are built-ins and then there are decorator items. Huge difference. Then, there is the whole issue of reasonableness. Why in the world would someone make this an issue? I certainly wouldn’t. If it were my buyer, I would be buying her the items she apparently covets.
Punch line is that this discussion is all taking place before the request for repairs has been submitted. They may win the shelves but lose the war.
January 8, 2007 — 6:41 pm
Athol Kay says:
I need a close up picture of the mirror with the naked people before I could really commit to a stand on wether it’s a fixture or not. Thanks.
January 8, 2007 — 6:55 pm
Curtis Lawson says:
I’m a fairly new broker…. I’ve been in the biz for almost 4 years. At a closing, when arguing with the listing agent about why her clients removed a stove, I was told: “Well you haven’t been in business that long, so you don’t understand.” Man that made my blood boil! This was a several-thousand-dollar vintage O’Keefe & Merritt stove that my client really wanted.
In Texas, our contract specifically includes the stove as a fixture that remains with the home. Nonetheless… she argued with me until she was blue in the face. Evidently her clients asked her to make it a named exclusion from the sale!
In the end, she was the one who gave up part of her commission to replace it. Justice!
January 8, 2007 — 7:04 pm
Greg Swann says:
My two cents’ worth:
I agree with you on reasonableness, but people aren’t reasonable in cases like this. Something that is attached to a wall in a way to make it immobile is arguably “affixed,” a fixture. (Real estate is bienes raices in Espanol, “rooted goods,” much easier to distinguish.)
My take: Anything you don’t want to fight about, take down before you list. The stuff in boxes in the garage is personal property.
Same principle for natural born gimmes: A bill of sale on the pool table, with “SOLD” in big red letters keeps it out of the contract. It is sold, too — having beeen sold to the sellers some time ago. (I first heard that in GRI.)
January 8, 2007 — 7:22 pm
Kris Berg says:
I am enjoying this public flogging (not). Greg – If immobile means two screws in drywall onto which an off-the-rack shelf has been rested through two pre-drilled channels, then it is immobile. My bulletin board in my home office is therefore immobile, as is every other picture and ornamental wall hanging in my home. If I strip a house of every visual enhancement prior to listing, that leaves me in a marketing pickle. Perhaps I should just have them move out ahead of showing. It seems rather a manner of convenience that we have someone honing in on method of attachment to suit their designer whims.
So as not to take this too far, let me assure you that I know enough to clarify the true “gray areas” at contract stage: Gas logs, closet organizers, the free standing Cherub fountain on the back patio, the obvious “family heirloom chandelier”, the obviously and majorly, professionally attached built-in media center and so on.
Curtis – I had someone try to remove a range once as well. That is NOT a gray area. The range stays, period, unless it is excluded at the contract stage. And my range stayed.
Athol – The mirror will be on eBay tomorrow. No minimum. 🙂
January 8, 2007 — 8:01 pm
Greg Swann says:
> If immobile means two screws in drywall onto which an off-the-rack shelf has been rested through two pre-drilled channels, then it is immobile.
The shelves aren’t immobile. Your hair dryer is. In Arizona we have a contract exception for dish antennae because the judges got tired of the fights. The towel racks in the bathtoom are no less attached to the wall than the hair dryer, and that seems to me to invite disputes.
January 8, 2007 — 8:18 pm
Kris Berg says:
Tough crowd. Just try to take my hair dryer. If you have seen my old business photo, you will know the outcome would not be pretty.
January 8, 2007 — 8:27 pm
Jim Duncan says:
This is an entirely different issue than whether the shelves are fixtures or not. In the grand scheme, the shelves may not be that big of an issue (especially if you find cracks in the foundation) but I would still argue that they are, in fact, fixtures, pending of course, Athol’s request for a photo. 🙂
Regarding the range – I had one taken out last year ; when I argued that the pre-printed language in the Contract said that the “built-in range” conveyed, the Sellers (and their agent) argued that it was a slide-in range! We chose not to fight that battle and found them another (left-over) range from another house we were selling.
you’re right though, all too often, the principals lose the forest for the trees.
January 8, 2007 — 8:32 pm
NYCJoe says:
When I bought my current house, the former owner’s wife was actually in the process of taking down the ornamental drape holders when we came by to start measuring for furntiture. She tried to give us some lame excuse – “they were a wedding present.”
Uh, yeah, right. Too bad I just bought them from you.
January 8, 2007 — 9:33 pm
Kris Berg says:
Joe, Different entirely. Window coverings, soft and hard, are contractual unless excluded.
This is making me crazy (er).
January 8, 2007 — 9:43 pm
Jonathan Dalton says:
No one else said it? Really? With this crowd? No one else suggested the sellers were …
(get ready)
… screwed?
Yep, I had two beers tonight. I’m with the crowd saying the screws made the difference.
Big picture question: is it worth it to your sellers to have a buyer potentially walk over the shelves? I ask only because the degree of seriousness depends on the buyers’ leverage. Last year I’d just as soon hit them with a shelf than give it to them.
Here’s one we had in our office … seller had large palm trees in boxes in their yard. Not planted. In large (theoretically at first, practically later) moveable planter boxes. A couple of feet square. Are these to be considered landscaping and required to convey or can the sellers take them since they’re not attached?
January 8, 2007 — 11:03 pm
NYCJoe says:
Kris – not taking sides, I was just telling a story. 🙂
January 8, 2007 — 11:13 pm
Cari McGee says:
I’m in Washington state and I received my early training from a very legalistic broker. She insisted a nail was more ‘real’ than a screw. If something was nailed to the wall (bookcases?) they stayed with the house, if a fuss was made. If something was screwed into the wall, it could go. She swore it was the court’s ruling. Legalities notwithstanding, I know agents on both sides of the sale who have had to pay for something to stay or go. It is frustrating!
January 8, 2007 — 11:28 pm
Athol Kay says:
In my office we have a form that is attached to the property disclosure that clarifies everything that is staying or going.
January 9, 2007 — 7:04 am
Kris Berg says:
Jonathan, I think the most important “reveal” here is that while you were having a couple of beers with friends, my shelves were the topic of interest. 🙂
January 9, 2007 — 7:46 am
Jonathan Dalton says:
Maybe so but are you going to tell me you’d rather talk about shelves than have an adult beverage or two?
Yep, I win. 🙂
January 9, 2007 — 10:33 am
Doug Quance says:
Sorry Kris. Those shelves are staying, IMHO.
In Georgia, the reason we have a property disclosure is because we needed sellers to disclose what is staying – and what is going.
Our disclosure even contains check boxes for switch plate covers; telephone jacks; window screens; and even door and window hardware.
I always tell sellers to be sure and use the disclosure to exclude any items that they want to keep. It saves a lot of headaches, later.
January 9, 2007 — 12:12 pm
Fred Pickard says:
Interesting discussion here. I was taught (in Florida) that that the difference between a “fixture” and “personal property” had to do with how it was affixed (would removing it cause damage) and portability. For instance, would removing it leave a big hole, or two easy to repair screw holes. It’s not really cut and dried, so it’s best to cover in the contract as mentioned earlier.
Just as an anecdote, a friend of mine’s listing was ready to close and during the buyer walk thru the buyer’s agent pointed out there was no toilet paper holder in one of the bathrooms. Evidently the prior owned had one of those decorative floor piece holders and removed the screwed in holder. My friend went to a nearby K-Mart, bought the cheapest one for about $2 and came back with a screwdriver and installed it.
The buyer’s agent was actually going to try to hold up the closing because of this.
January 10, 2007 — 7:04 am
Maureen Francis says:
The shelves can go. I am surprised that so many people feel otherwise.
January 10, 2007 — 7:21 pm
Kris Berg says:
Maureen,
THANK YOU!!!!! If you hadn’t already been on my blog roll, I would be adding you now in all caps.
And “go” they will. I will be back with an update in March. (It’s a long escrow).
January 10, 2007 — 8:12 pm