The MLS: An offer of compensation, not a contract between principals.

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Creative Commons License photo credit: maveric2003 

This issue rears it’s ugly head on occasion, and I saw it happen yet again. The Multiple Listing Service property input included moveable appliances in the “equipment” category, the subsequent (accepted) offer did not include the washer, dryer or refrigerator as personal property to convey, and at close of escrow the buyer was surprised to find big, gaping voids where these items once resided.

It’s you old “theirs versus ours” dilemma. We have a brief rundown of items which are considered fixtures versus personal property here, but it is worth repeating. When it comes to the stuff in the house, fixtures convey unless they are explicitly excluded in the contract. Personal property, on the other hand, goes away with the seller’s U-Haul unless specifically included. In between, there is a vast gray area.

The popular test for fixture versus personal property is the method of attachment, and even here you can get yourself into some trouble. If the bookshelves are attached with eighty-seven anchor bolts, the buyer will soon be assuming the dusting duties. On the other hand, if the eighty-seven photos in the hallway recounting the building of Fenway Park are affixed with penny nails and coat hangers, the buyer can (thankfully) kiss these good-bye. A simple toggle bolt can send everyone straight to mediation, so it is better to write the pot rack in or out just to be sure.

This is the language in the current version of the California Association of Realtors Residential Purchase Agreement (updated hourly):

NOTE TO BUYER AND SELLER: Items listed as included or excluded in the MLS, flyers or marketing materials are not included in the purchase price or excluded from the sale unless specified (below).

ITEMS INCLUDED IN SALE:
(1) All EXISTING fixtures and fittings that are attached to the Property;
(2) Existing electrical, mechanical, lighting, plumbing and heating fixtures, ceiling fans, fireplace inserts, gas logs and grates, solar systems, built-in appliances, window and door screens, awnings, shutters, window coverings, attached floor coverings, television antennas, satellite dishes, private integrated telephone systems, air coolers/conditions, pool/spa equipment, garage door openers/remote controls, mailbox, in-ground landscaping, tress shrubs, water softeners, water purifiers, security systems/alarms.

Of course, every item in this list is here because someone at some point tried to pack it up on their way out of Dodge. As goofy as some of these items may seem, Steve and I actually watched with amusement as a neighbor, during his escrow (not our listing), started removing palm trees from his front yard under the cover of darkness. We had to assume that they had some sentimental value. And, don’t gloss over the word “existing.” We even had one situation where our buyer came to the final walk-through and found that light fixtures, switch plates and even the microwave oven had been replaced by not-so-like likenesses.

Now, back to the fridge. No one can argue that a refrigerator is a fixture. In other parts of the country, it is quite customary to ditch the appliances when selling a home. In San Diego, however, it is more common to take them with you. The MLS is an offer of compensation to the broker who brings the buyer; it is not a contract between principals. The MLS remarks may indicate that the home comes with the washer and dryer, the Toro lawnmower on the side yard, and a pony, but unless the buyer writes these things into the contract, it is being taken strictly on faith.

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