When selling your home you need to be able to identify real property versus personal property prior to putting your home on the market. Accurately identifying the two types of property will avoid possible disputes. A general rule in identifying real property: if the property is attached to the house then it stays with the house. For example, window treatment and chandeliers are in most cases considered attached to the house, therefore would stay with the house when it sells. If there are questionable items that the buyer might assume stays with the house, and seller intents on taking those items to their new home, then the seller needs put a sign on or near the item(s) stating the item(s) do not transfer with the house. In addition, the items that are to be included with the sale of the house should be identified within the Seller’s Disclosure of the property which is made a part of the contract. In final analysis, if you must unscrew a screw, take out a nail, detach from a wall or an exterior structure, remove from the ground, and you want to take the property to your new home, be sure it has been identified within the contact.
I had one seller and her lawyer [with a straight face] argue that a heavy item that the buyer wanted removed from the basement was NOT personal property because it was already there when the home was purchased!
John,
We are starting to get into some crazy questions here, as many TV's are now attached and I tell folks to assume they go with selller, or put it in the Purchase and Sales Agreement.
All the best, Michelle
I tell Sellers that if they want to keep it they need to take it before they put the home on the market and replace it with a similar item.
I have one couple I have sold four (4) homes for them. They take their entry light every time. Each time I list their current home I remind them to take it down, before we put the home on the market.
All the seller needs to do, at least in my area, is to write in the contract the "exclusions" which are not part of the sale. Attaching signs to items don't cut it here. The exclusions need to be in writing, they need to be mutually agreed.
This is a huge area of litigation. Best to get it resolved and questions answered before the issue arises, like at the outset of the performance of the contract. it there is any question, ASK!
In Tennessee, kitchen appliances such as the stove, dishwasher and built-in microwave stay. The refrigerator does not. I had a buyer's agent contact me after closing once asking what happened to the refrigerator. I explained it didn't stay, nor was it listed in the MLS as staying. She tried to argue they always stay. My response...not unless you ask for it.
Short and to the point. Avoid disputes and always put what you want to take in writing if it is considered real property.
I am so glad that you did this post. Many times there is a gray line between is it or isn't it. You post makes it very clear to me and as you well know...anything can be negotiated if there is a problem..
Definitely one of the most important things to identify when buying or selling a home. A piece of advice I always give my sellers: if you absolutely want to take it with you, go ahead and remove/replace it prior to listing so its a non-issue during the time of sale.
I think the best solution to this problem is to remove any items that might be questionable prior to listing the property. It will make it so much easier when an offer comes in.
Betty
Great advise and easily implemented. I haven't had any disputes yet but I'm sure I'll be ready. Thanks for sharing.
I like to take this argument (yes, argument) one step further. The TV's are not attached to the house, the wall mounts are. The surround sound speakers aren't attached to the ceiling, the mounts are. the curtains are not attached to the wall, the rods are. I've lost deals over one set of Pottery Barn curtains before.
Agree with many others here, if you don't want it to be the source of an issue, take them down no matter how much better your house looks with them!
I hate pre-closing disputes about what conveys and what doesn't. I'm always cautious to a fault. Disputes can usually be avoided by two good real estate agents discussing gray area items prior to contract ratification. Our CA purchase contracts have improved and now list common gray area items. Like many above I want the seller to remove and/or replace fixtures that don't stay with the house.
Good explanation, John! "Attached or Detached" is a good way to define it. I do remember a sale I had, which caused a stir shortly before escrow closed. There had been an approximate 8 foot decorative windmill in the landscape, which the selller took with them. It was not permanently achored, but the buyer was refusing to sign until it was returned. There was a discussion about "real and personal" property, and the escrow successfully closed. I also recall a small commissionectomy occurred to sweeten the pot:-)
John - This is a good easy explanation of something that seems to confuse many people.
Ah, the old five-prong "M.A.R.I.A." test. I do know some agents who have had commission-ectomys due to their lack of knowledge.
I go a step further and advise the sellers to remove anything that is not included before showing like replacing a special chandelier.
We deal with it everyday. Our buyers and sellers don't. Set expectations, describe the local traditions and define personal property, real property distinctions in your real estate dog and pony right up front. Unless you like drama and wasting time, seeing emotions, tempers flare after the day. Or before the closing causing a derailment of you getting a commission check slide your way with your name on it at the conference room sale finale.
John, great topic. So often this issue of real vs. personal become a challenge.
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