When a home seller and a buyer come to an agreement on a sale, more than just the house and land are involved. Misunderstandings sometimes arise over elements of the home that the buyer thought were staying and the sellers intended to take with them. These decisions revolve around three legal concepts: real property, personal property and fixtures. What do they mean and why do they matter to you?
Defining the three terms.
- Real property is the most fundamental concept in real estate law. Real property in most states is defined as land and structures affixed to it. The things attached to the land are immovable including landscaping such as trees and turf. This is the primary property that is bought and sold in a real estate transaction and is transferred by a deed.
- Personal property is movable and is the kind of thing you expect the seller to be taking with them such as furniture, tools, automobiles and the like.
- Fixtures are personal property that an owner attaches to the real property in a permanent way. However, “permanent” can be a little gray in some cases. Usually, if something is bolted to a wall, floor, cabinet or counter, it is considered a fixture, but sometimes sellers want to take such items. This is where disputes arise.
Make sure everything is clear. Appliances such as built-in microwaves and sink disposers are fixtures because they are bolted to the property. But a refrigerator can be unplugged and taken. Technically, a drop-in stove could be moved, but it would be unusual. Attached shelving which was added after the house was built is a fixture. A decorative mirror that is bolted to a wall would be considered a fixture, especially if removal would damage the wall. However, it may be of value to the owner, in which case the seller would need to repair any wall damage.
For any items that are not clear, the best way to know what stays and goes is for the buyers to ask the sellers for anything they are interested in keeping. Any items that are determined to stay with the home for the new buyer are said to “convey” in the transaction. Once the buyer and seller reach an agreement, those terms should be clearly spelled out in the sales contract. Any agreed upon personal property will be transferred to the new owner via a bill of sale.
After the closing, any property left in the house, including personal property the seller intended to take but overlooked, no longer belongs to the seller. Any such fixtures are considered part of the real property, and any personal property is considered abandoned by the seller.
