Are Hot Tub and Gazeebo Chattels or Fixtures?

by Rick
(Canada)

I am in the midst of this misunderstanding right now. We sold our house, and the buyers verbally said they don't want the hot tub. Then they changed their minds and now want it along with my gazebo. None of this was included in the offer. Now it is going to our lawyers to work out. The hot tub is on patio stones and the deck is built partly around it.

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Mar 13, 2017
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Confusion Between Fixtures and Chattels
by: Ross

Hi Rick:

Thanks for your submission. This is a fairly common occurrence with such controversial items.

Since buyer agents, when preparing an offer, typically use information included in the listing details, it's imperative that, when preparing the listing contract, the seller's agent be as clear as possible. Prior to executing the listing, it's imperative that the listing agent and the homeowner discuss the terms to be offered, including what's to be specifically included and excluded from a sale. To avoid future conflict, everything should be in writing.

Of course, this doesn't preclude a buyer from asking for chattels that are even specifically excluded from a listing, or excluding something that's included.

Were the hot tub and/or gazebo expressly excluded on the listing, or were either of them even mentioned? As I said, hot tubs in particular are a serious source of conflict. Why? Because some people will interpret that they're chattels because they sit atop a patio or deck and aren't nailed down. Others will argue that they're fixtures since they're physically connected by way of electrical wiring and plumbing.

Personally, I subscribe to the latter position. Thus, if a seller intends to take a hot tub and gazebo with them when they vacate the property, such items must be expressly excluded from the listing and any subsequent Agreement of Purchase and Sale.

In my experience, verbal agreements are usually unenforceable. Thus, to prevent exactly what appears to be happening to you, the verbal agreement should have been reduced to writing, if not in the sale contract initially, then in an amendment after the verbal agreement was made.

Once such an issue goes to the lawyers, who by their inherent nature, are adversarial, anything can happen, including going before a judge. But in this case, I suggest that you'll end up having to leave this equipment behind. Who pays for the mistake may be determined later after a discussion with your lawyer and agent.

It might be a good idea to discuss this issue with your sales rep immediately in the hope that s/he can resolve the issue with the buyer's agent. If a compromise cannot be reached, possibly by the buyer agreeing to a slightly higher sale price to have the equipment included in the sale, then one of the parties will have to make the sacrifice. The buyer gives up, or you do.

Such conflicts are definitely avoidable, but it involves thinking through the entire process, with the assistance of your agent.

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