A seller listed a high end home for sale with a custom cabinet in the family room that went from wall to wall and floor to ceiling. The home was shown many times before a buyer appeared. They were ready willing and able to purchase and did not need to sell their present home to complete the purchase.
A contract was mutually executed and the closing delayed so the seller could stay in occupancy until their new home was completed. A closing date was set and the buyers proceeded to do a final walk through.
Here is where it gets interesting. The family room was devoid of the custom wall cabinetry. Gone! And in order to remove it the seller had to have several sliding glass doors removed and replaced after removal. Buyer said it was a part of the purchase and would not close. Seller had already moved it to the new construction home with the permission the builder but had not yet closed needing the proceed of sale to move forward.
Let's take a closer look at the vacated wall. Six screw holes near the ceiling! What were these for? Seller said it attached the cabinet to the wall for security but it was not necessary. Therefore it was personal property and not a fixture.
Enter the definition of a fixture: a item of movable property so incorporated into real property that it may be regarded as legally a part of it.
Let's see, the fact that it appeared as a fixture given its nature, was not specifically disclosed as not conveying with the property, took extreme measures to be removed forth property and six heavy screws had to be removed in order to move it, what do you think?
Add in the fact that the seller would have been in default on their new purchase if they did not get the proceeds of sale in a timely manner. The precious alleged cabinetry would be lost forever.
The contract called for mediation in the event of a dispute. A mediation could not be performed before seller would be in default on their purchase.
Suggestion - pay the purchaser of the home you are selling for removing the fixture and move on. Purchaser willing to listen and negotiate. Seller was at first adamant.
Not a good position. Purchaser alleged he would contact the builder seller had used and offer to purchase the home they were building since it was similar in layout in a different neighborhood.
The seller was screwed, the buyer was fair in a negotiated settlement and the parties moved on. The seller had screwed himself!
This is the second entry of the March On challenge sponsored by Kathleen Daniels, Probate & Trust Specialist and Patricia Feager, MBA, CRS, GRI,MRP
Thank you, Debe Maxwell, CRS
Guess I was east coast dreaming and not California dreaming Kathleen Daniels, Probate & Trust Specialist. It has been corrected.
Too funny Wayne Martin - thank you.