Dear Heather,

We have signed a contract to buy a house. When we first saw it, before signing the agreement, there were two refrigerators. One was in the kitchen and one was in the basement. The real estate agent told us that both refrigerators would stay with the property. Closing is scheduled for next week and we have now been told that the basement refrigerator has been removed. We do not understand if a refrigerator is a fixture or not.

Buyer

Dear Buyer,

Your question has stumped a lot of people and is not uncommon in real estate transactions. There is no easy answer as to what is a fixture.

An item, standing by itself, may not be a fixture, but will most probably be categorised as chattel. For example, a kitchen sink in a plumber’s shop window is chattel. Once it has been installed in your house, however, it becomes a fixture and is part of the real estate. Generally speaking, and in the absence of a contractual agreement to the contrary, fixtures remain with the house. Personal items (chattel) can be removed by the seller.

As you can see, it certainly makes a difference how an item is categorised.

For example, can a seller take a removable wet bar from the basement even though the plumbing is hooked up? Does a window air-conditioning unit convey with the property?

The manner in which the article is attached to the real estate is the key.

If the article can be removed without substantial injury to the building, it is generally held to be chattel. Also, consider the following guidelines:

• The character of the article and its adaptation to the real estate

If, for example, an article was fitted or constructed specially for a particular location or use in a house, one can argue the article becomes a permanent part of the building, and thus a fixture. For example, in other jurisdictions these items have been deemed to be fixtures: pews in a church, screens and storm windows specially fitted to a house and electronic computing equipment installed on a floor specially constructed for it.

• The intention of the parties

What would the average person consider the article to be? Murphy beds fastened to the wall on pivots are considered fixtures but rollaway beds that are not fastened to the wall are chattel.

Going through this fascinating history of fixtures, one important caveat comes to mind: if the seller or the real estate agent verbally advises you that a particular item will convey with the property, be sure to spell it out in the real estate contract. If you want the refrigerator to stay, put it in the contract to avoid any confrontation in the future.

Homebuyers are often disappointed because they relied on what the agent or the seller said. Don’t always blame the agent here as sellers are prone to change their minds and not necessarily inform their agent.

In your case, I would argue that the second refrigerator should stay with the property. However if you have nothing in writing to back it up, then you may be out of luck. At the end of the day ask yourself is it worth losing the house of your dreams over a refrigerator?

Final thought: If you are the seller and want to take a particular item with you, spell it out in writing in the sales contract. And if you are the buyer and want a particular item to stay in the house, spell it out in writing in the sales contract.

•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 in confidence. Read this article on Facebook: Ask Heather Real Estate