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05/24/2014: Entering The 'Twilight Zone' Of Home Fixtures

The Washington Post - Washington, D.C.

Author: Kass, Benny L Date: May 24, 2014

Questions often arise regarding ownership of property that becomes fixed or attached to a part of real estate.

Property owners may want to install high-speed cable modem boxes, additional communications wiring, shelving, wine cellars, exercise equipment and more - and then take them away when they sell.

Is there any clear-cut definition of a fixture?

A Nebraska court stated that "fixtures are in the twilight zone between things real and things personal."

Thus, the simple answer is that there is no clear-cut answer. Courts have issued conflicting opinions as to what is a fixture.

In layman's terms, I think we can all agree that a fixture is something that initially was not attached to real estate - such as an air-conditioning window unit or a wet bar that was installed in a house after it was built.

Legal issues arise when the seller moves out and takes his personal belongings, including those that he had previously attached to the property, and the home purchaser discovers only after settlement that the seller has removed them. If it is a fixture, it stays with the property.

Let's look at some typical issues. In each case, the item was installed by the property owner/seller.

* A lamp fixture attached to a ceiling electrical box above the dining room table.

In this situation, so long as the fixture can be removed without damage to the ceiling - and the seller installs a substitute fixture and makes sure there are no open electrical wires that could cause a fire or injury to a person - I believe that can be removed.

* A piece of framed art attached to a wall. Again, so long as the artwork can be removed and any holes in the wall restored, this can be removed.

* A wet bar that is affixed to the wall. Here, I would draw the line and call this a fixture, which must stay in the house.

The list goes on. But, there is a lesson to be learned: Namely, put everything in writing. If you are buying a home, and there is an item that you want to remain there, spell this out specifically in the sales contract. For example: "The wall racks installed in the garage shall convey." Alternatively, if you are a seller, and there are items that you want to remove, make it clear in the sales contract: "The wall racks installed in the garage do not convey." As for the lamp fixture referenced above, the buyer may have thought it was a fixture and thus should have stayed in the house. This is exactly the kind of issue that is best resolved in the real-estate contract.

The analysis of fixtures applies equally to landlord-tenant issues. From my experience, when there is litigation, typically the buyer or the tenant will win. That's because the sellers or the landlords could have made their intentions clear in the written contract or lease.

Custom and practice may differ from one community to another. For example, when you sell a house in California, it is customary that the refrigerator does not convey.

Thus, I have encountered people coming from the West Coast to purchase real estate here finding they have two refrigerators, while people going out to California find that they have no refrigerator in the new house they have purchased.

Talk with your local real-estate agent and your attorney to make sure you fully understand these local customs.

In the final analysis, a written document is the best protection.

Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.

Credit: Benny L. Kass. Reproduced with permission of the copyright owner. Further reproduction or distribution is prohibited without permission.

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