Remember fighting with your siblings and friends over belongings? It’s mine, no it’s mine! Well, that argument can occur again when buying or selling a home. Is it personal property or fixture? There are so many amazing items in homes for sale in Acworth GA. Assumptions are made by sellers on what they expect to keep and take with them to their next home, and buyers envision some of those items as they begin to virtually decorate their new home.
So who wins the argument? It depends. The legal rule is that real estate conveys and personal property can be removed by the seller. Still confused? In real estate terminology, fixtures stay. A fixture is something that is permanently attached to the property. If a dispute occurs, some legal tests are used to make a determination:
- Method of attachment – can it be removed without causing damage? An entertainment center secured with a few screws is different from one that has a base, crown molding and multiple pieces attached to the wall. Removing the first would be like taking a painting down, but the second would require dismantling and could cause damage to the wall as well as to the unit itself. The second piece is a fixture. Some items that would be considered fixtures include built-in appliances, ceiling fans, shutters.
- Existence of an agreement – if the listing states that all window treatments are included, but you only meant the blinds, this would be a problem and could result in the seller leaving the window treatments. The most common items that are disputed usually include draperies, light fixtures and appliances. A clear understanding of these items in your listing would probably help.
- Adaptation of item – is the item being used as personal property or has it been modified to the room? A refrigerator is usually personal property, but if it has been modified so that the doors match the kitchen cabinets, it is now a fixture. Sometimes this can become a little blurry like if a window valance is attached to a window to match the room decor. Can the valance be removed without causing damage to the window frame or does the buyer assume it is staying since it is attached? The same could be said of a chandelier.
If you have items in your home that are sentimental or that you intend to take with you, you might want to replace them prior to listing your home. Even if you do, there still may be some gray areas:
Window Treatments: Window treatments that include curtain rods, cornices, blinds, shutters, and shades have often been thought of as fixtures. While these may be fixtures, the curtains, draperies, liners, sheers, etc., can be easily removed; yet the two become an area of dispute and should be clearly communicated in a listing to eliminate any problems later on.
Appliances: Most appliances are personal property, like refrigerators, washers and dryers which simply need to be unplugged to move them. But some might be connected to gas lines or water filtration hookups, creating a question about whether they are personal property or fixtures.
Accessories: Many homes now have gas fireplaces, and while the fireplace is a fixture, the gas logs are not since they can easily be removed. If you have purchased expensive gas logs, you may want to take them, which again needs to be specified in the listing.
Tips for Sellers & Buyers in Homes for Sale in Acworth GA
As a seller:
- Don’t list or show the house with any fixtures you want to keep. Replace them instead. By replacing them you eliminate the confusion and potential disputes later on.
- If you aren’t prepared to replace the items that won’t be included in the sale, make sure it’s clear to prospective buyers, spelling it out in flyers, during open houses, to their agents, etc. Keep in mind that if these are items that must be included for the sale, i.e., light fixtures, etc., then you absolutely must be prepared to replace them with similar items. For example, while an antique chandelier may be excluded from the sale of your home, you must be prepared to replace it with another chandelier prior to closing.
- Review any offers completely to ensure that items that may have been listed as excluded, have not been included in an offer. Even though you excluded them, a buyer may want them and so includes them in their offer. If you accept the offer, you will be legally obligated to leave the item and it now changes from personal property to a fixture, as explained in Existence of an agreement above.
As a buyer:
- When presenting your offer, be sure to include a listing the items you want to stay in the house (both fixtures and personal property), be specific even including makes, models, and colors. By being as specific as possible, you eliminate controversy later.
- Do not wait until closing to discuss these items. It can be the difference between a completed transaction and failure to close.
- Ensure that all agreements are in writing. If you decide to pursue legal action, failure to have these agreements written into the purchase contract or amendments prior to closing, can result in a futile and disappointing effort.