Unfortunately, disputes regarding fixtures and accessories are common, and tend to muddy up an otherwise smooth transaction. If a buyer has any question as to a seller’s intent to remove or leave an item that may or may not be considered permanently attached to the structure of the home, the future ownership of such item should be specifically negotiated and provided for in the final contract.
Porch Swings. Play Sets. Basketball Goals. Bathroom mirrors. Shelving. These are the things that tend to give rise to heated bickering immediately before or after a closing, as moving trucks are backed up into the driveway and the transfer of possession ensues. No matter how inclusive the list of equipment and fixtures in Par. 2 of the TREC contract may seem, there is no way for a generic form to address all the specifics of today’s residential real transactions.
Traditionally, the test as to whether an item is considered part of the real estate itself, and therefore automatically transferred as part of the contract, is whether the item is permanently attached to the structure. If so, it is legally considered a fixture and part of the real estate itself. If not, it is considered personal property, not covered by the contract to convey real estate, and freely removable by the seller after closing. But the way modern families furnish and decorate a home, whether an item is permanently built-in and attached is not always easily determined. In such cases, several questions should be asked: is the shelf/cabinet hung by brackets, or screwed into the wall/ceiling? Is the appliance plugged in or hard-wired? Can the item be cleanly removed without causing damage to the structure? Often the correct answer is subject to debate (like those pesky porch swings).
And just because an item is specifically listed in Par. 2B. or C. doesn’t mean the item automatically stays with the property. The listed item must be permanently installed and built-in to stay. For example, even though outdoor cooking equipment is listed under 2.B. as a fixture staying with the property, a free standing outdoor grill cabinet may not be built-in, and therefore may be removed by the Seller.
For these reasons, if there is any question as to the future of the play set, basketball goal, antique medicine chest or framed mirror, as examples, the issue should be discussed. If the seller wants to retain the item, he or she should exclude it from sale by listing it under Par. 2D. If the buyer wants to ensure that it stays with the property, it should be included in a Non-Realty Items Addendum. The best advice is to not assume anything; if it is desired, name it in the contract.
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Jack Rattikin, Jr., and Jeffrey A. Rattikin—the partners comprising Rattikin & Rattikin, LLP—have a combined 85-plus years of experience in all aspects of commercial and residential real estate law across the State of Texas. The firm continues a tradition of providing the most professional, ethical and up-to-date legal services available in the industry. In response to the growing needs of its clients, the firm has expanded its areas of practice to include a broad range of real estate and transactional services.
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