It’s something that probably causes more disputes than anything during a property’s sale – the question of what’s included in the sale and what isn’t. Most problems aren’t due to people being deliberately difficult, but instead, they are caused by buyers and sellers not understanding how “real property” is legally defined.
What Do You Actually Buy When You Purchase A Home? When you buy a home, you purchase “real property,” which is the land and anything permanently attached to it, such as the buildings, trees, etc. In addition, you also get any fixtures, which are items that are permanently fixed to the home. If a seller wishes to take any fixtures with them, they must include those items in the sales contract.
At first glance, this seems to be a clear definition, but problems arise when buyers and sellers interpret these definitions in different ways. This is particularly true in the case of items that a seller has installed, or has a personal attachment to and the buyer assumes they are part of the property.
What Do You Actually Buy When You Purchase A Home?
“Items which are permanently attached” seems like a pretty clear definition. However, if things were clearly cut and dried, then there would never be any issues. Not only that, I wouldn’t be writing this article and you wouldn’t be wondering if the person from whom you purchased your last home really should have taken those ceiling fans with them.
In the case of some items, such as wooden flooring or the stair railings, it seems clear that they are permanently attached. In other cases, things such as decorative light fittings, window treatments, even elements of the landscaping of the home can become a matter for heated debate between buyers and sellers.
How Personal Property And Fixtures Can Become Confused
It is easy for both buyers and sellers to become confused about what does and what does not count as a fixture.
How Sellers Are Confused
From a sellers perspective, they have often taken a great deal of time and spent a lot of money on sourcing the “right” item for a room. Alternatively, they may have just purchased a brand new item to replace an older one which had come to the end of its life.
The amount of time and trouble taken to find an item, the amount of money spent, and the newness are all elements that feed into a seller’s perception that an item is theirs and not part of the property they are buying.
Another element which causes difficulty for a seller is when something that is legally part of the property is something the seller has curated and has a strong personal attachment to. This often occurs with sellers who have spent many years creating their garden. Perhaps they are dedicated collectors of a particular plant and as such consider those plants as theirs.
A Gardeners Example
I know of one sale where a large part of the attraction for the buyers was the beautiful, mature landscaping. The garden included a well-stocked fish pond, a vegetable garden, several fruit trees, and several “garden rooms” carefully defined by trees, shrubs, and other plants.
When they turned up with the moving truck, they discovered that all of the fruit trees and vegetables, the fish, fountain, and plants from the pond, and the majority of the “room” defining plants were gone.
The buyers had assumed all of this was part of the home; the sellers assumed that, as they had planted everything it was theirs, and neither party had ever thought to ask about any of these items.
How Buyers Are Confused
For buyers, the biggest problem is that they often make assumptions about what is and what is not included in a sale. Sometimes this is the result of a previous home buying experience, for example, “the last home I bought came with the appliances, and I left my appliances in the home we sold, so I assumed the appliances would come with this house.”
On some occasions, these assumptions are correct. For example, a refrigerator that is built-in as part of a bespoke kitchen would be a fixture and should be left behind. On the other hand, a microwave oven that is sitting on a shelf and can be unplugged and carried away is not a fixture and can be taken.
The Items Which Most Frequently Cause Issues
So, let’s take a look at some of the items which are most often at the center of a buyer/seller dispute.
Large Appliances
The majority of homeowners have become accustomed to the fact that people leave items such as the stove or the washer and dryer behind. However, unless the appliance is permanently affixed to the property in some way, it is not part of the property and can be removed by the seller.
It is also not unheard of for a seller to take the high-end appliances already installed and replace them with cheaper items. Again, although this may be morally questionable, it is not a legal issue, unless the appliances had been listed in the sales contract as part of the transaction.
One exception to this is that in some financing agreements, the lender will require a stove to be part of the home as a condition of the mortgage. In this case, it is essential to ensure, with the seller, that there is a stove in place when the buyer moves in.
Home Theatre Systems
If you would have to dig into and remove parts of the wall in order to remove the speakers or screens, then they could be considered fixtures. If the speakers and screen are sitting on shelves or are mounted on the wall with brackets, then the brackets could be regarded as fixtures but the speakers, etc. would not.
Above Ground Pools, Hot-Tubs, And Spas
If you, as a buyer, want to keep an above ground pool, spa, or hot tub, you need to stipulate this in the purchase agreement. While some people would argue that these items may be on specially built platforms or under a roof-like structure and as such are fixtures, these items can be easily disconnected from the electricity and water and as such are not part of the “real property.”
Likewise, if you definitely want these items removed before you move in, again, it’s essential to stipulate this fact in the contract, or you may find it still there when you move in.
Window Treatments
Curtains, fabric panels, and other similar items which could easily be slid off of a curtain rod are personal property and can be removed. The curtain rods blinds where the top unit is affixed to the frame and any other supporting items such as hooks on the walls with which to attach tie-backs are all fixtures and must remain.
Recreational Items
Playhouses, swing-sets, climbing frames, basketball hoops, etc. are all items which can fall either side of the “fixture or not” debate.
If the item is affixed to the ground or the building in any way, then it is a fixture. So if the climbing frame has to be dug out, or the basketball hoop has to be unscrewed then it is a fixture and should stay.
If the item can be lifted off of the ground – no matter how large and unwieldy it is, then it is personal property and can be removed.
How The Law Decides What Is And What Is Not Part Of The Property
There is a simple(ish) way to work out whether or not an item is a fixture of the property or not.
Method of attachment
If an item is bolted, nailed, cemented, glued or otherwise affixed to the home in a way that damage would be caused if it was removed, then it is real property and part of the house.
Adaptability of use
If an item has been made specifically for a particular location in the house and could not be easily used in another house, it could be argued that is part of the real property and should remain in the home
The intent of the buyer and seller
The first part of this is to ask whether the average buyer or seller would consider the item to be part of the home. This, in itself, may not make things much clearer so next, you should ask whether the item was included in the marketing materials for the sale.
So, if the sales literature says that the home has all new appliances, it would be reasonable to assume that by including them in the listing the seller intended to leave them behind.
Are There Any Differences Between A New Build And An Older Home?
There are a few additional things to be aware of if you are buying a new home after viewing a show home.
Show homes tend to have the highest specification upgrades in them, most of which are available at an additional cost. If you are buying a property after having only seen the show home, ensure you know exactly what is and what is not included in the property.
How Can A Seller Avoid Any Issues?
A seller can help to avoid disputes with a buyer by being careful what items are and are not included in the sales listing. By putting in writing every article, they wish to leave, and everything they want to take and providing this list to prospective buyers, sellers can significantly reduce the potential for conflict.
Next, when it comes to reviewing and negotiating the offer to purchase, be sure that every item that is important to you is clearly addressed.
In addition, if there are items in the home that you know you want to take with you, consider removing them before you show the house.
How Can A Buyer Avoid Any Issues?
Before you view a home, you can ask if the seller has a list of items they want to take and a list of things they want to leave behind. In addition, you can carefully review the sales literature for any specific items that are addressed.
When you view a home take photos of any items which you would like to see left behind or taken away and include these in your negotiations.
If there is an item which is essential to you then ensure they are listed in the offer to purchase and double-check none of those items are left out in future contract revisions. You can also include a clause which state if these items are removed, you have the option to withdraw from the sale or deduct a specified amount of money from the sale price in order to buy replacements.
Finally, don’t forget to do a final walkthrough and if any items that should be there are missing or that shouldn’t be there still are you still have time to address the issue before the closing meeting.
Final Thoughts
Both buyers and sellers can have very different ideas about what is and what is not included in a home sale. Generally speaking, if something can be easily removed, it is personal property and can go, but if to remove it would cause damage, then it is part of the property.
About The Author
Geoff Southworth is the creator of RealEstateInfoGuide.com, the site that helps new homeowners, investors, and homeowners-to-be successfully navigate the complex world of property ownership. Geoff is a real estate investor of 8 years has had experience as a manager of a debt-free, private real estate equity fund, as well as a Registered Nurse in Emergency Trauma and Cardiac Cath Lab Care. As a result, he has developed a unique “people first, business second” approach to real estate.
Check out the Full Author Biography here.
This article has been reviewed by our editorial board and has been approved for publication in accordance with our editorial policy.
