By James L. Goldsmith, Esquire
A quick trip to Google suggests that this question comes up all the time, though I am only starting to get Hotline calls on the subject. I looked to Google because I wanted to follow-up my answer, "It depends," with the industry standard, if there was one. What I found on the web made my head spin. Apparently there are lots of "experts" out there on all sides of the issue, some who conclude that even a TV becomes a fixture once it is bolted to a mount that is bolted to the wall! What I found on the web also reminded me why web browsers are not the place to conduct legal research.
So, we are going to reach an answer to this "new" question by resorting to old principles of real estate law. And the most basic question to be answered on our quest is, what is real estate? (Stick with me, this will get us there.) Real estate is the land and anything annexed to the land with the intent that it is permanent. We call those permanent attachments "fixtures." So a fixture is real estate that is sold with the land. Since a basic agreement of sale purports to convey "real estate," it also serves to convey fixtures.
But we humans love exceptions. A buyer and seller, therefore, may agree that fixtures will not be sold with the rest of a property. But if the parties do agree that a fixture passes to the seller, so be it. Their agreement controls. As long as an item is addressed in the agreement of sale, it doesn't matters whether the item otherwise is considered a fixture or personalty.
So what about that TV mount? If the parties address it in the agreement of sale, the agreement controls its destiny. Standard agreements usually include fixture clauses that cover the common items (lighting fixtures, plumbing, smoke detectors, garage door openers) and some more unusual ones say, radiator covers, electric animal fencing systems. And while such clauses are modified to keep up with the times, they don't catch everything (TV wall mounts). Years ago, the disputes were not over TV mounts but over TV antennas attached to chimneys which looked like those old-time things you hung wet laundry on. There were as many fights over those old antennas as there are now about TV mounts. And, yes, many REALTORS® dug into their pockets to resolve those disputes, just as they do today.
Since the PAR standard agreement offers no help with regard to our TV mount, we have to apply basic real estate law to determine whether a TV mount is a fixture. Specifically, we need to determine whether the TV mount was attached to the wall with the intent that it be permanent. That, my friends, will lead to the answer.
But how does one prove intent? Ah ha! I just happen to have a video of the seller attaching the wall mount, clearly declaring his intent that it is not a permanent addition to the house, but one that will be removed when the seller leaves the property. Obviously that doesn't exist, so how will intent be proved?
Intent is proved in courts of law every day. Intent is what distinguishes first-degree murder from other forms of homicide; it distinguishes an accident from an injustice. There is usually little direct evidence of intent and resort is made to circumstantial evidence. In our case, circumstantial evidence will include how the TV mount was attached to the wall.
It is hard to imagine a TV wall mount that can't be removed, as can the lag bolts that attached it. A little spackle, sanding and paint will likely remove all trace that it existed. Other evidence may be whether the mounting system is proprietary to a specific TV or universal so that it will accept all TVs.
My inclination is to consider that a TV wall mount is personalty, assuming that it is relatively easily removed and the cover-up easily applied. Reasonable minds, however, may differ. A poll of the Hotline attorneys suggests that while I may be with the majority, there is indeed a difference of opinion (actually, I discontinued polling when I saw that I might lose).
The only thing I can say with complete confidence is that the best practice is to avoid these disputes altogether. Do so by adding a provision to the agreement of sale that clearly states whether TV wall mounts are included with the property or not.
So what is the next fixture/personalty controversy on the horizon? I am sure we will find out.