As anyone who has ever sold or bought a house knows, it is a complicated and often stressful process. To get through it as efficiently and easily as possible, it helps to anticipate and be ready to steer clear of potential legal disputes, particularly when the seller is living in the house when it is shown to the buyer and the purchase and sale agreement is entered into, goes to the very “heart of the matter”. What is the seller selling and the buyer buying? Specifically, what items will the seller leave for the buyer as parts of the property, and what items will the seller take away?
What is a Fixture?
A fixture is any item of physical property that was previously movable but has been permanently attached to, or is otherwise particularly adapted to, a house (or the land on which the house is built) so as to have become a part of the real property.
For the most part, fixtures are easy to identify, but in some cases, it’s not so clear. In the following, we’ll briefly describe the factors that are commonly considered when determining what’s a fixture and what’s not, then list some items that are usually treated as fixtures, some that usually aren’t, and some that can go either way.
“MARIA” – the Five Factors
MARIA is an acronym for the five factors that are most important in identifying fixtures. It stands for Method, Adaptability, Relationship, Intention and, Agreement:
- Method (of attachment) – If an item is physically or permanently attached to the property, either by concrete, glue, screws, nails or otherwise, it is usually considered a fixture;
- Adaptability (to the property) – If an item which is not itself permanently attached to the house or land is nonetheless particularly adapted to the property, it is usually considered a fixture (for example, a swimming pool cover or a floating floor);
- Relationship (of the parties) – If an item is in dispute between a buyer and a seller, the buyer has the upper hand, because it is assumed that anything that the seller attached to the house (or the land) was meant to be a permanent fixture;
- Intention (of the seller) – If the seller-homeowner intended to install or build an item into a house or yard as a permanent fixture, it is likely to be considered a fixture; and,
- Agreement (between the seller and the buyer) – Specific provisions of the purchase and sale agreement between the seller and the buyer are often the deciding factor.
Fixture or Non-fixture?
Some items are usually treated as fixtures, parts of the real property, including:
- Wall-to-wall carpets
- Built-in cabinets
- Ceiling fans
- Mirrors fixed in place
- Built-in bookshelves and utility shelves
- Light fixtures
- Curtain rods and window blinds
- Towel racks
- Awnings
- Landscaping, shrubs and trees
Other items are usually not treated as fixtures and are removed by sellers, including:
- Furniture
- Rugs
- Hanging mirrors
- Detached bookshelves and utility shelves
- Free-standing cabinets
- Curtains and drapes
- Wall-mounted televisions (the brackets may be fixtures, but not the tv)
- Yard and garden decorations
FInally, there are some items in a house or yard that are close calls and often give rise to disputes between a seller and a buyer, such as:
- Refrigerators, washers and dryers (built-in or just plugged-in?)
- Above-ground hot tubs or swimming pools
- Swingsets and other playground equipment
- Security systems
Communication and Agreement between Seller and Buyer
Rather than assume anything about what will stay with a house and what will not, the seller and the buyer should openly discuss and agree in writing (one way or the other) either on general categories of items, e.g., “appliances”, and/or any particular item that seller or buyer is especially interested in, e.g., “the hot tub”. This will help them avoid unexpected and unnecessary disputes.
If you are considering selling or buying a house and need legal advice or assistance related to fixtures or any other real estate law issue, you can call us at Kelly & West and arrange for a free consultation.
