Fixtures Vs. Chattels: What Stays When You Buy A House?

What stays and what goes when you buy or sell a house or condo? This can become contentious and more trouble than the money value involved. Sometimes it’s the buyer who’s disappointed when she discovers on moving in that the gilt-framed, wall-mounted hallway mirror she loved is gone. Other times it’s the seller who is surprised to learn he shouldn’t have taken along that hot tub on his back deck when he moved out.

Such disappointed expectations can sour your relations with the other side, resulting in hours on the phone with your realtor or lawyer. You could even end up in court. So what are the rules about this, and is there a fix?

At its most basic, any item that just sits on the floor, unattached and portable (like a dining room table) is presumed to be a “chattel,” meaning a piece of tangible, moveable personal property – so it’s something the seller can take away, unless it’s been written into the purchase contract as an included item.

In contrast, any item that is attached or “affixed” to the land (like the house itself) or the floor, walls or ceiling (with screws, nails or glue, say) is presumed to be a “fixture,” meaning a chattel that’s become part of the real estate – so the seller cannot take it away, unless the purchase contract says otherwise. (There are special rules for tenants’ trade fixtures.)

But note, when something is “presumed” to be either a chattel or a fixture, that leaves the door open to prove the opposite in court. And the court will look at this objectively, not from your point of view, but by using some hard-to-apply guiding principles.

Trouble is, if the contract is silent, this all leaves a lot of grey areas where it’s not obvious if something is a chattel or a fixture. What about pictures hanging on picture hooks? What if they’re directly attached to the wall? Or drapes on rods – if the drapes can slide off, and the rods just sit in attachments screwed into the wall? How about TV’s sitting in wall-mounted brackets? Light fixtures like that expensive dining room chandelier? Central vacuum systems, partly built-in but with lots of loose or removable attachments? Washers, dryers, kitchen appliances? How about the fancy stainless steel refrigerator that’s just plugged in to the wall socket? A table-top microwave oven?

Or how about a greenhouse or utility shed in the backyard? In a 2010 case, the court decided the greenhouse and utility shed were chattels, sitting unattached and easily moved, so the seller could take them. Here are some other items in dispute in that case: fire pit bricks (fixtures), planters (chattels), outside water tap handle (a $9 item – fixture), unattached shelving (chattels), screwed-in kitchen can opener (fixture), wall-mounted mirrors (fixtures), candle holders hanging on screws (chattels).

So what’s the fix? For any important item, spell out in the purchase contract if it is included and must stay, or if it is excluded and goes.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

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