Q. At the pre-settlement walkthrough, the buyer was shocked to find no trace of the pellet stove that was present on all previous visits. When asked of its whereabouts, the listing agent said that it was not mentioned in the fixtures clause of the standard agreement (Paragraph 7) and was therefore an item of personalty not sold with the property. True, the pellet stove was not mentioned under “also included,” nor was it mentioned under “excluded fixtures and items.”
Who gets the pellet stove?
A. This is not the first time I have published an article on this topic nor is it likely to be the last. In my 30+ years representing Realtors®, this has been a recurring problem though the recent call was my first on this specific item.
There are a few conclusions I can reach with certainty. If this dispute goes to trial, everyone will have lost! The litigation expenses will outweigh the cost of buying and installing a new pellet stove. With less certainty I can predict that a Realtor® will probably dig into his or her pocket and buy a pellet stove to avoid litigation and/or recrimination.
With only slightly less certainty will I predict that the buyer gets the stove. I do so because in the pre-printed language it states: “INCLUDED in this sale, unless otherwise stated, are all existing items permanently installed in the property . . . and other items including plumbing; heating; . . .” While a pellet stove may not be the primary heating system for a home, it is a system designed to heat and therefore would seem to be included by the language.
We don’t want items to go to a buyer or seller by happenstance or neglect. When taking a listing, an agent should be very careful to ask questions about those problem items or the unusual things found in the home. Whether they go to the buyer or remain with the seller should be a matter of design and therefore controlled by terms of the agreement, ultimately in the agreement of sale.
Despite best efforts, there will be items that are not listed with the included or excluded items. Who gets the unmentioned? In these situations we resort to case law that defines fixtures and personalty as well as the factors that distinguish one from the other. A fixture is real property, the definition of which is the land, and anything annexed to the land, with the intent that it be permanent. Notice that to be part of real property, any item has to be “annexed” to the land and not necessarily “attached.” More importantly, a fixture is this thing that goes with the property (annexed to it) with the intent that it be permanent. So, what was in the mind of the person who placed the item on or with the property that controls?
How do we know what the intent was of an owner who placed a pellet stove in the property? Direct evidence of intent is not easily found though circumstantial evidence may abound. How the item was attached to the property gives one insight into the annexor’s intent. Bolting the stove to subflooring or creating new space for it may be examples of circumstantial evidence that would cause any reasonably prudent person to conclude that the stove was intended to be permanent.
A problem exists anytime we have to argue about whether something was intended to stay or go. When this happens it means that we didn’t sufficiently anticipate the problem and deal with it in the fixtures clause. That takes us back to my earlier point: at the time one takes a listing, determine what goes and what stays. We never have to enter the debate of fixture versus personalty if the contract assigns a destination for the item.