Fixtures- Whatever That Means- Included
In the Bahamas, partially because of the
historical trials and tribulations of acquiring furniture
for island homes, homes sold to non-domestic
buyers most often included everything that made up the household.
In those days, it was relatively easy to create an arrangement
for sale, and it was infrequent that disputes or misunderstandings
would develop. The new people simply took over everything.
However, the Bahamas is a modern nation,
and acquiring household goods is now almost as easy as in
the rest of North America.
Increasingly, homes are being
sold ready to furnish, and more sellers are keeping their
furnishings, appliances, and fixtures for their next home.
This means that the ingredients
that constitute the items accompanying the house must be
clearly defined.
It is relatively easy to understand what
furnishings are, and we all know that a stove or a refrigerator
is an appliance, but what about fixtures? What exactly is
a "fixture"?
According to legal-definitions.com, "a
fixture is a piece of personal property that has been attached
to
real
property that is considered irremovable." Examples might
include central heating or cooling machines.
In Ontario, Canada, fixtures are items
that are considered to be permanently attached to real property
when installed, such as above-ground swimming pools,
blinds (including venetian and vertical), built-in appliances,
car wash equipment, counters, cabinets and shelving, fireplace
inserts, gasoline pumps, signs, theatre seats, and water heaters.
Not considered to be fixtures: window mounted air conditioners,
PBX and computers, and free-standing appliances,
such as stoves, refrigerators, washers and dryers, even if
connected to wiring or plumbing.
In Nebraska, fixtures "Shall
include any item of property that is annexed or physically
attached to or incorporated into the real property; applied
or adapted to the use or purpose of the real property;
and, intended to be annexed to the real property."
A humourous treatment of what defines fixtures
was the central storyline in the hilarious Richard Pryor
comedy, "Moving".
As the realtor is presenting the home,
Pryor jokingly asks the realtor at the sweeping staircase,
"Is it included?" "No"
says the realtor, and they both laugh. They come to the
in-ground pool. Pryor again asks if the pool is included
in the purchase
price. The realtor pauses for effect and again says no.
They both laugh. This exchange continues for the entire showing,
the realtor in effect,
telling his client the truth and Pryor making it out to be
a joke.
Well, we all know what happened. Upon getting
the keys, our hero finds he has bought himself a house "without
fixtures", and the rest of the movie is a wonderful story
of how he recovers from a housing disaster.
But let's
look at a real world case.
You have found a home, and you want to
purchase it in its entirety as shown, in other words,
fixtures
included. The seller however, has several items
- paintings, specialized cabling for his
computer,
and a
wine cabinet that he considers to be personal items.
Looking at each item, we see that one painting
is mounted in a frame that is screwed to the wall. This
means
that it is physically attached to the house, and is a fixture.
The wine cabinet is under a counter, and a moulding has been
applied to make it look like part of the surrounding cabinetry.
This too makes it a fixture. The cabling has been installed
under the baseboard, and is only exposed for the last part
of the run. Again, this may be considered a fixture.
This is where difficulties can arise- you
consider that these items are part of the house, and the
seller considers them to be personal items.
However,
it is likely that the fundamental point of deciding what
is and what isn't a fixture can
be easily handled by the seller creating a thorough list
of what will definitely not be included in the sale.
These
will
form the exceptions
in the understanding that the house will be sold with everything
except what has been noted. Note that the seller must be
very sure to be complete with his list, or misunderstandings
may easily
develop.
The same situation exists when we look
at at the other extreme, the case where you wish
to buy
only
the
house,
and the seller will keep
the
contents.
Again it is very important to create a complete and accurate
list of what will be retained as part of the house.
It is not as important to draw strong lines
of definition between furnishings, personal items, appliances,
and fixtures, as it is to simply and clearly delineate item
by item what is included and what is not included in the
sale. When the seller has included a comprehensive
inventory of items that they will be retaining, the legal
definitions cease to matter, and the status of each item
becomes common knowledge.
The seller must then ensure that this
list
is provided to the realtor so that they can represent
their client's full intention. This also allows you to provide
this list to your lawyer who will ensure that it forms an
important part of any
legal document.
In parting, the best advice is to commit
the list to writing, and
have both parties agree with their signatures. Often local
customs will be
a little different market to market, and confusion and unpleasant
disagreements can be avoided with appropriate attention paid
to what is excluded, not what is included. |
