What’s included or Excluded in the Sale?

Whether you are a hoe buyer or seller, it pays to know what is included or excluded from your sale. Can the seller remove the dining room chandelier? Should the buyer presume the living room drapes are included in the sales price? What about the rose bushes in the garden?

The “Law of Fixtures”

The answers to these important home sales questions are determined by the “law of fixtures.” The basic fixture rule is quite simple, but the implementation is often difficult.

A “fixture” is personal property that, by means of permanent physical attachment to the land or structure, such as with bolts, nails, screws, cement, glue or other attachment method, is converted to real property.

To illustrate, suppose a home’s living room has beautiful drapes that the buyer loves. Unless the sales contract specifies the “window coverings” or drapes are included in the sales price, the seller is entitled to remove the drapes. However, the seller must leave the drapery hardware that is bolted or screwed to the structure. Recently a house with a beautiful yard filled with rose bushes was sold to a rose lover. A major reason for purchase of the home was the extensive collection of rose bushes. Imagine the buyer’s shock on the day after the sale closed to discover the seller had removed all the rose bushes.

Although plants growing in the ground are considered attached to the property by roots, these rose bushes were in large pots that were hidden by the topsoil. Legally, the seller was therefore entitled to remove the dozens of rose bushes that remained removable personal property in their containers.

Avoiding Fixture Trouble

Experienced real estate agents advise their home sellers, before showing the residence to prospective buyers, to remove any attached fixture that the seller doesn’t want included in the sale. The classic example is a dining room chandelier.

Some naïve sellers hang a little “not included” tag from their chandeliers. That is the worst thing a seller can do. It is like waving a red flag in the buyer’s face. You can be sure a serious buyer will then specify in their purchase offer “Dining room chandelier to be included in the sales price.” Instead, the seller should remove the chandelier and install an acceptable replacement so the buyer never sees it.

Equally important, the sales contract should specify which fixture items are included or excluded from the sales price. The general rule is unless an item is listed and if it can be removed without damage to the structure, it is personal property that belongs to the seller.

For example, a washer and dryer are personal property that the home seller is entitled to remove (unless the buyer specifically includes those items in the sales contract purchase offer). However, built-in appliances are considered fixture that are automatically included in the home sale unless they are specifically excluded.

To illustrate , a kitchen cook-top range is a built-in fixture. A built-in dishwasher and microwave are also considered fixtures. However, a free standing refrigerator remains personal property, while a refrigerator that is built-in is a fixture.

Windows coverings are often controversial. Drapery rods are clearly fixtures (included in the sales price) because they are screwed into the structure. But home sellers often argue drapes are hung by hooks, thus making them personal property that the seller can remove. But home buyers reply, especially if the drapes were custom-designed to fit the structure, they have become fixtures that are included in the sales price.