When I take a listing, I walk through the home with the seller to discuss fixtures. If personal property is affixed or fastened to real estate, it becomes a fixture. Fixtures become real property when they are attached to the property.
If the seller has a certain affection for a fixture, I suggest the seller remove it and, if necessary, replace it. If a buyer never sees it, the buyer won't want it. Soon as you call attention to a fixture and tell the buyer she can't have it, she'll covet it. It's just human nature, quirky as that may sound.
One seller had developed an attachment to his Bosch dishwasher. Now, one can't remove a dishwasher and leave an empty space between the cabinets because buyers would object. The seller bought a Kenmore and installed it before we put the home on the market.
People become attached to the strangest things. When I bought my home, the seller, without my authorization nor knowledge, had removed the bedroom drapes the day of closing. I insisted she return the drapes because they were custom made for the curtain rods and for those windows. When she refused, I threatened to take her to Small Claim's Court.
The following day, she was on my doorstep with the box of drapes, a bottle of wine and an apology. Turned out the drapes would not fit the windows in her new home anyway, but she had deliberately taken them, even though she had no use for them. Why? Because they were expensive, she said.
Typically, if you can remove window coverings by sliding them off a rod such as curtains or drapes, those window coverings are not considered a fixture. However, curtain rods, blinds and window shades are fixtures.
How to Determine if Personal Property is a Fixture
Every state has its own guidelines for what constitutes a fixture, but here are the five tests California courts use to determine what is a fixture and what is not. Not every test needs to be met.
It's called M-A-R-I-A.
- Method of attachment. Is the item permanently affixed to the wall, ceiling or flooring by using nails, glue, cement, pipes, or screws? Even if you can easily remove it, the method used to attach it might make it a fixture. For example, ceiling lights, although attached by wires, can be removed, but the lights are a fixture.
- Adaptability. If the item becomes an integral part of the home, it cannot be removed. For example, a floating laminate floor is a fixture, even though it is snapped together. One could argue that a built-in Sub Zero refrigerator is considered a fixture, although it can be unplugged, because it fits inside a specified space.
- Relationship of the parties. If the dispute is between tenant and landlord, the tenant is likely to win. If the dispute is between buyer and seller, the buyer is likely to prevail.
- Intention of party when the item was attached. When the installation took place, if the intent was to make the item a permanent attachment, for example, a built-in bookcase, the item is a fixture.
- Agreement between the parties. Read your purchase contract. Most contain a clause that expressly defines items included in the sale and ordinarily state "All existing fixtures and fittings that are attached to the property."
How to Ensure That Fixtures Remain with the House
Sellers and buyers should specifically state in the purchase offer which items will stay with the house and which will go, especially if there could be confusion over a fixture. Items such as kitchen appliances, bookshelves, portable spas, water fountains, and washers and dryers, should be noted in the contract as included or excluded from sale.
In California, many buyers are confused about koi ponds. Do the fish stay or go? The pond is a fixture, but the fish can be carried away in a bucket of water. Some koi are kept as pets. If a buyer wants to negotiate for the koi, buyers are advised to identify the type (some can cost $3,000 a piece) count the koi and write the fish into the contract.
For legal questions, please consult a real estate lawyer.
At the time of writing, Elizabeth Weintraub, DRE # 00697006, is a Broker-Associate at Lyon Real Estate in Sacramento, California.