Perception can be subjective. Nevertheless, how fixtures and chattels differ is normally obvious. But sometimes, it's not. Wikipedia defines a fixture, from a legal perspective, as any physical property that is permanently attached (fixed) to real property (usually land), the removal of which would permanently damage the real property. On the other hand, property not affixed to real property is considered chattel property. The following is how I normally advised a new seller or buyer client prior to listing or while I showed a property.
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Unless items that are mechanically attached to the property (for example, screwed, nailed, wired or glued) are specifically excluded in writing on the listing contract and again on any Agreement of Purchase and Sale (APS), they must remain with the house when the homeowners vacate. Also, anything that could be remotely perceived by a buyer as being physically part of the property - even if it's not mechanically attached - could also be expected to be included in the sale.
Things such as a thermostat, furnace, central air conditioner, electrical panel, drapery track, installed broadloom, built-in cabinetry and shelving, attached swimming pool equipment, hot tub, garden shed, garage door opener, door bell, security and water filtration system, built-in workbench, awning, satellite dish, built-in entertainment and speaker system, built-in kitchen appliance, toilet and sink, wired-in electric light fixture, central vacuum system, attached mirror and fireplace insert would clearly be classified as a fixture.
If a flat-screen television is wall mounted with a bracket and wired into the system, it could also be considered a fixture. On the other hand, an above-ground hot tub resting on a sundeck - but appears permanently installed - could be perceived as a chattel. Or it could be deemed a fixture because it's electrically fastened or plumbed to the property. Unless clarified in the contract as being included or excluded, the seller could correctly or mistakenly remove it before closing. Ditto for a canvas deck canopy if it's not bolted down.
Chattels, on the other hand, would be items such as a free-standing major
appliance, unattached carpet (area rug), draperies and curtains, plugged in lamp
and light fixture, furniture piece, mirror and art hung on hooks,
fireplace equipment, window air conditioner unit, unattached pool
equipment and any other items not physically attached to the property.Be careful about the attachments for the central vacuum system; they could be deemed chattels. So, be specific in the Agreement of Purchase and Sale.
In most offers, an alert buyer agent will include a clause that provides a warranty by the seller to their buyer client with respect to any chattels and fixtures included in the sale. Since these items contribute to the over-all value of the property, a buyer ought to have the assurance that what they're paying for will be in good operating order on completion of the APS.
However, buyers should not delude themselves into thinking they'll have some kind of extended warranty. A warranty and representation by a seller, in such a case, is simply a promise that these fixtures and chattels will be in good working order when the buyer closes the deal. But it's very important for the buyer to check for proper operation immediately upon gaining possession of the property. Leave it too long and they may be out of luck. A judge will allow a reasonable amount of time after closing - usually a day or so. If something is malfunctioning, the buyer should contact their agent or legal advisor immediately. The seller may be held responsible for any repair or replacement deemed necessary in order to comply with the warranty clause contained in the contract.
When fixtures and chattels are rented, it must be so noted on both the listing contract and the APS. A hot water tank, furnace, satellite receiver, air conditioning unit, security alarm system or water softener, for example, could be rented by the homeowner. In such case, a seller does not have the legal right to sell it. Hence, any rental fixtures and chattels would not be included in the sale.
If they are transferable to a subsequent owner (they may not be), a clause must be included in the APS which clearly states that the buyer has agreed to assume the terms of the rental contract. If not, the buyer may believe they've actually bought the 'rented' fixtures and chattels. The seller could then be held responsible by the rental company for a penalty or the balance of a buy-out of the rented equipment, whether fixture or chattel. Or the buyer could be drawn into a legal conflict between the rental company and the previous homeowner. Either way, it would be a messy, potentially expensive situation for all involved, including one or both the agents.
It's a wise practice for a buyer to take photos of any fixtures and chattels included in the sale. This can be easily accomplished during a home inspection. The inspector could also take the opportunity to record model and serial numbers of major appliances included in a contract.
If a seller deliberately attempts to deceive a buyer regarding fixtures and chattels or their operating condition and a buyer subsequently sues the seller, a seller could be ordered to not only repair or replace the damaged goods, but also pay punitive damages to the buyer for attempting to deceive them.
Another prudent practice is for a buyer to perform a "final" inspection, commonly referred to as a "visit", to ensure everything contractually included in the APS is still on the property. Hopefully, both agents have been thoroughly professional in their explanations regarding fixtures and chattels from the commencement of proceedings, including listing details.
Sellers should leave their home in compliance with the contract and in the same condition as they would expect it to be if they were the buyer.
To avoid conflicts during sale negotiations and particularly after the closing of the sale, the best policy when listing a property for sale is to have a serious conversation with an experienced agent regarding what you intend to remove when vacating your home and what you plan to leave behind.
Click fixtures and chattels to learn more about other real estate terms.
On countless occasions during my career, I've had clients confused about the difference between a fixture and a chattel. Thankfully, I've been able to clarify things for them, thereby preventing what could easily have developed into a major, deal-jeopardizing disagreement.
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