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When is a house fixture not a fixture?

Dear Heather,

My husband and I recently bought a property. There was a six-foot-by-three-foot rose garden in the back yard. When we did our final home inspection, the roses were there. But when we showed up the following day with our moving truck, we discovered the roses had been dug up and removed. Our agent said the roses are a fixture. What types of things are considered house fixtures? Can the seller take the roses?

Heather: What are house fixtures and what are not fixtures is the basis for many real estate disputes. In your case, generally speaking, all landscaping, or any type of plant with roots firmly ensconced in the ground, is considered a fixture. It doesn't have to exist inside the house. If the seller won't return the roses, perhaps you can ask the seller to reimburse you so you can buy your own.

When I take a listing, I walk through the home with the seller to discuss fixtures and chattels. If personal property is affixed or fastened to real estate, it becomes a fixture. Fixtures become real property when they are attached to the property. If it is a removable item such as furniture, appliances and drapes it is called a chattel. Chattels are frequently sold with the property and listed in an inventory, either within or attached to the main sale and purchase agreement. If the seller has a certain affection for a fixture or chattel, I suggest that the seller removes it and, if necessary, replace it. If a buyer never sees it, the buyer won't want it. As soon as you call attention to a fixture and tell the buyer they can't have it, they'll covet it. It's just human nature, quirky as that may sound.

One seller had developed an attachment to his Bosch dishwasher. Now, one can't remove a dishwasher and leave an empty space between the cabinets because buyers would object. The seller bought a Kenmore and installed it before we put the home on the market.

People become attached to the strangest things. When I bought my home, the seller, without my authorisation nor knowledge, had removed the bedroom drapes the day of closing. I insisted she return the drapes because they were custom-made for the curtain rods and for those windows.

The following day, she was on my doorstep with the box of drapes, a bottle of wine and an apology. Turned out the drapes would not fit the windows in her new home anyway, but she actually had a right to take them even if she had no use for them. Why? Because they were expensive, she said. Technically they were movable thus were chattels.

Typically, if you can remove window coverings by sliding them off a rod such as curtains or drapes, those window coverings are considered a chattel. However, curtain rods, blinds and window shades are fixtures.

How to determine if personal property is a fixture

Here are the five easy tests you can use to determine what is a fixture and what is not. Not every test needs to be met. It's called M-A-R-I-A.

• Method of attachment. Is the item permanently affixed to the wall, ceiling or flooring by using nails, glue, cement, pipes, or screws? Even if you can easily remove it, the method used to attach it might make it a fixture. For example, ceiling lights, although attached by wires, can be removed, but the lights are actually a house fixture.

• Adaptability. If the item becomes an integral part of the home, it cannot be removed. For example, a floating laminate floor is a fixture, even though it is snapped together. One could argue that a built-in Sub Zero refrigerator is considered a fixture, although it can be unplugged, because it fits inside a specified space.

• Relationship of the parties. If the dispute is between tenant and landlord, the tenant is likely to win. If the dispute is between buyer and seller, the buyer is likely to prevail.

• Intention of party when the item was attached. When the installation took place, if the intent was to make the item a permanent attachment, for example, a built-in bookcase, the item is a fixture.

• Agreement between the parties. Read your sale and purchase contract. Most contain a clause that expressly defines items included in the sale and ordinarily state.” All existing fixtures and fittings that are attached to the property.”

How to ensure that fixtures remain with the house

Sellers and buyers should specifically state in the purchase offer, which items will stay with the house and which will go, especially if there could be confusion over house fixtures or chattels. Items such as kitchen appliances, bookshelves, portable spas, water fountains, and washers and dryers, above ground pools, should be noted in the contract as included or excluded from sale.

What about koi ponds. Do the fish stay or do they go? The pond is a fixture, but the fish can be carried away in a bucket of water. Some koi are kept as pets. If a buyer wants to negotiate for the koi, buyers are advised to identify the type (some can be costly) count the koi and negotiate with the seller separately. As a Real Estate Agent, personally I sell houses and like to keep my contracts as clean as possible. Usually I will suggest the buyer and seller negotiate separately on items like furniture and fish. The last thing I need is a contract falling apart over an elderly koi, or a questionably green couch, and believe me it happens! Be very clear about what is staying and what is going, and make sure it is in writing.

However if you have any legal questions, please consult a real estate lawyer.

Heather Chilvers is among Coldwell Banker Bermuda Realty's Leading Sales Representatives. She has been working in Real Estate for 27 years. If you have a question for Heather, please contact her at hchilvers@brcl.bm or 332 1793. All questions will be treated confidentially. Please go on to Heather's Facebook page — Ask Heather Real Estate — to like and share this article.

Know your fixtures: removable items such as furniture and drapes are considered chattel

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Published August 23, 2016 at 9:00 am (Updated August 23, 2016 at 6:51 am)

When is a house fixture not a fixture?

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