That’s a phrase you never want to hear if you’re selling Davie real estate! Regardless of whether you’re the seller or the buyer in a real estate transaction, you need to be perfectly clear about what is included in the sale – and what isn’t!
Is It Personal Property or a Fixture?
The real estate law in the state of Florida describes what is personal property, and what is a fixture. Personal property are those things that a seller owns and will remove from the home when they sell. A fixture is something that would be considered part of the home itself and would be included in the sales price.
It may sound simple, but it’s an issue that has caused a lot of heartache for buyers and sellers when they haven’t done a good job of defining those two things.
Test for Fixtures
The short answer to the question about personal property vs fixture is this: If an item is permanently attached to the home, it is considered a fixture. For example, you may have renovated the bathroom and purchased new sinks and bathtubs. But, once you install them in the house, they become a fixture of the house.
Buyers and sellers who have heard that definition might think that the issue is covered. In reality, there are several tests that a court would consider if a disagreement arose.
- What did the parties involved intend?
- What is the relationship between the parties?
- How was the item affixed to the home?
- How is the object being used?
The court will look to the sales contract to define intent. You have a buyer/seller relationship which is looked at differently than a landlord/tenant. The permanence of the way the item was affixed will be evaluated. If the object in question is solar panels, and the house will have no electricity if they are removed, the court would most likely consider the panels as fixtures.
Know How to Protect Yourself in a Real Estate Transaction
There’s a very simple way to protect yourself against disagreements. Let’s say you’re selling your home. If you partner with an experienced REALTOR®, that person will work with you to identify anything in the house that might be in question, and include the disposition of that item in the sales agreement.
There are many examples. That chandelier, for example. It is permanently affixed to the home, but if it has sentimental value to you, the sales contract should specify that the chandelier isn’t being sold with the house.
If you’re buying a home, make sure that the contract clearly reflects your expectations. Showing up with the movers is not the time you want to discover that all ceiling lights and fans are gone. There should be standard language in the contract that identifies those things that a buyer just automatically believes will be sold with the house. The contract should also include specific language that excludes any items the seller wants to remove.
The Worst Case Scenario? Should be Just More Negotiation
If the seller wants to take all the wall to wall carpeting, that’s a point for negotiation. If the seller won’t budge, then as a buyer you must decide if you want to purchase the home under those conditions.
The key is to define everything in the real estate contract to avoid misunderstandings. A California court once held that an organ built into the house was actually personal property and the seller could remove it.
As a buyer, ask about any items that may not immediately seem to fit in one category or the other.
Work with Teri’s Real Estate Team to make sure you avoid misunderstandings. We know the questions to ask and how to reflect each party’s wishes in the sales contract. Call us at 954-242-8030 or send an email for more information.