Best of the Hotline – Portable hot tub – a fixture?

By James L. Goldsmith, Esq.

I am astounded by what I have learned from REALTORS®! Yesterday's lesson, provided by a Hotline caller, was that some hot tubs are portable! I always presumed they were delivered to the site in a box and to that extent were "portable." But I always assumed that hot tubs were then "permanently installed" in some fashion. But a Google search of "portable hot tubs" illuminated my ignorance on the subject. Did you know that for less than $500 you can buy a four-person portable, inflatable hot tub? Or, you can go deluxe with the Super Tuscany 6-Person Portable Spa with plastic wood spa frame from M-Spa.

Yes there is more to this article than the pronouncement that portable hot tubs exist! The issue presented by the Hotline caller was a question of entitlement of that portable hot tub: is it seller's, or buyer's?

Determining whether an item found in the home is a fixture (real estate that is sold with the home) or personalty (seller's personal property that is not sold with the home) is complicated, dispute-provoking and imprecise. Being specific in the agreement of sale as to what stays and what goes is the better practice. The PAR Standard Agreement (ASR) provides us with a pre-printed list of those items that otherwise might be the subject of a tug-of-war if not litigation. That clause, Paragraph 7, Fixtures and Personal Property, provides that "INCLUDED in this sale, unless otherwise stated, are all existing items permanently installed in the property, free of liens, and other items including . . . hot tubs (including covers and cleaning equipment) . . ."

Our Hotline caller was a seller's agent who claimed that the hot tub was portable and not "permanently installed in the property" and therefore not included in the sale. I disagreed. The provision quoted above is in the conjunctive and joins two classes of hot tubs that are included in the sale: 1) those hot tubs permanently installed in the property, and 2) other items that are not permanently installed in the property but that fall under the definition of "hot tubs" (including covers and cleaning equipment). In fact, all of the items described in Paragraph 7 are included in the sale (unless expressed excluded by some amendatory language) even if not permanently installed in the property.

The caller could have avoided the loss of his seller's hot tub had he followed the advice we have been giving for years. At the time of listing, review the fixtures clause (yes, have a copy of the agreement of sale with you) and identify any of the items in the list that the seller intends to keep. Review that list and Paragraph 7 once again with the seller when an offer is presented and amend it, if necessary. Exercising this kind of care will help you keep your money in your pockets rather than having it go to the purveyor of the 6-Person Super Tuscany!

Copyright © James L. Goldsmith, Esquire, CALDWELL & KEARNS, P.C., 2014

All Rights Reserved

Jim Goldsmith is an attorney with Caldwell & Kearns and serves as general counsel to PAR. A substantial portion of his practice is dedicated to providing advice and counsel to real estate licensees. He and his firm represent and defend real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. Jim also defends REALTORS® in disciplinary hearings conducted by the Real Estate Commission. He routinely counsels employers on employee relations issues and is one of the voices of the PAR Legal Hotline. He may be reached at www.realcompliance.com.