“Can I keep it?” This benign little question is raised at some point during nearly every transaction. Usually, a discussion of “personal property” versus “fixtures” ensues, but many items fall into a gray area. Fortunately, our California Residential Purchase Agreement (RPA) has attempted to address these.
The purchase agreement includes a paragraph that addresses items “included in and excluded from” the sale. It is a zinger, and at both the listing stage, where we are representing the seller, and at the contract stage, we have the talk. If you want to take the whimsical cherub wall sconces when you leave, because they are cherished heirlooms that have been passed down for generations, most recently at your son’s Bar Mitzvah, then they need to be written into the contract as exclusions. If you are a buyer looking forward to lazing in the seller’s hammock after you have finished unpacking the FiestaWare, then you need to write the hammock in as personal property to convey. Memories tend to fade, however, and where our stuff is concerned, a food fight can easily break out.
First, there is the issue of fixtures and fittings, and everyone seems to be pretty clear on the idea that those come with the home. It generally boils down to method of attachment; if an item is bolted in and can reasonably be considered an integral part of the home, then a fixture it is. If you can pick it up and haul it to the moving van, it’s personal property. Even here, though, disputes tend to arise.
Then, there are all those little nits, those gray areas that over the years have been most often the subject of wars being waged. Garage door openers, pool equipment, and gas log inserts, for instance, are all listed in the contract as staying with the property. The potted plants go away, but plants residing in our “fertile” native Scripps Ranch soil remain. This list is dynamic, however, and as our standard purchase contract has evolved, certain things have needed clarification. Wall-mounted televisions are now specifically excluded from the fixtures list, although the mounting brackets remain a point of debate and, often, contention.
The single biggest whose-stuff-is-it-anyway dispute in the transaction is, in my experience, always related to the window coverings. Note here that I said “coverings,” because that is how our contract reads. According to our contract, window coverings convey unless they are excluded from the sale. Once, we had a seller argue that she got the whole part about the drapes being goners, but the contract didn’t apply to her decorative valances, because they didn’t really “cover” anything. Attorneys have repeatedly said otherwise. Decorative or not, fabric or wood or a sheet of butcher paper cut to size, window coverings – window treatments – are included in the sale.
Bottom line: When in doubt, write it in.