Is Your Refrigerator Running?

By Scott Gregory
Realtor
Weichert Realtors SunSouth

A potential buyer of your home asks you, "Does the refrigerator transfer with the house?"

"Yes," you answer.

Days before closing, the buyers walk through the house and realize the refrigerator is gone. The buyers are furious with you and want to know where "their" refrigerator went.

"MY refrigerator is in the kitchen of MY new house," you respond defensively.

When the buyers asked, "Does the refrigerator transfer with the house?" you thought they meant, "Are you taking it with you?" They meant, "Are you leaving it?" The transfer was intended to take place in the transaction, not via a moving truck.

You answered the question honestly but now find yourself in a dispute over a "fixture." Such disputes are common in real-estate transactions. Sometimes the debate arises out of simple misunderstandings, such as in this example. They kill deals at worst, and at best cause bad feelings between buyers and sellers.

Fixtures are objects that were once personal property but have been transformed into real property. For example, the wood you built your deck with was personal property when you drove to Lowe's two weeks ago, bought it, loaded it in the truck and took it home. But once you nailed the wood together, attached it to your house and it became a deck, the wood crossed the line into the realm of real property.

Most people understand that yanking the deck off the back of the house, or pulling the sink off the bathroom wall, and loading them into the moving truck isn't going to go over big with buyers once the house is under contract.

But other objects enter a gray area. What about the ceiling fans? The washer and dryer? The refrigerator? The window treatments? The throw rug in the master bedroom?

Courts usually look at the following in resolving disputes about fixtures:

* Attachment. In general, if removing the object would damage the house, the object will be considered a fixture.

* Adaptation. Was this product custom made to fit the house? Do the curtains match the wallpaper exactly, and were the curtains custom built? Were bookshelves built to fit a specific space?

* Relationship between the parties. In the landlord-tenant relationship, tenants are usually expected to leave objects they attached to the structure. An exception to this rule is trade fixtures, objects businesses use as a necessary part of their trade and attach to the structure.

* Intent. What did the parties intend in regard to transfer of the fixture? What statements were made to third parties? What does the sales contract state?

You need not state that the toilets stay, but all objects that are questionable as fixtures should be clearly spelled out in your sales contract. If you want all ceiling fans, the refrigerator, and the washer and dryer as part of the purchase, be sure to state this in writing as part of the contract. The more specific you are, the better the chance you can avoid disputes later.