In real estate, clarity is paramount. Buyers and sellers must explicitly state in writing which items will remain with the property and which will not. Assumptions can lead to misunderstandings and potential legal disputes.​
Buyers: Don’t Assume the Refrigerator Stays
Many buyers assume that appliances like refrigerators are included in the sale. However, unless specified in the purchase agreement, they are considered personal property and may be removed by the seller. To avoid surprises, explicitly state in your offer that the refrigerator is to remain with the property. ​
Sellers: Don’t Assume You Can Take the Antique Mirror
Sellers may wish to take certain items, such as an antique mirror they installed in the primary bathroom. However, unless these items are specifically excluded in the purchase agreement, they are considered fixtures and must remain with the property. To retain such items, sellers should clearly state their intention to remove them in the listing and again in the purchase and sale contract. ​
Best Practices for Both Parties
- Specify in Writing: Clearly list all items that will remain or be excluded from the sale in the purchase agreement.​
- Use the M.A.R.I.A. Test: This acronym stands for Method, Adaptability, Relationship, Intention, and Agreement. It helps determine whether an item is a fixture or personal property.
- Method - How is it attached, screws and nails or just hanging on a nail?
- Adaptability - If an item is specific to the property's design or purpose, it's likely to be considered a fixture such as a grill with a counter build specifically for that grill size and shape.
- Relationship - The relationship of the parties (buyers and sellers) can affect whether it is a fixture. If it goes to court, Courts are more likely to rule in favor of the buyer, who might argue that an item should be included in the sale, especially if they were under the impression it was a fixture and it was not specified in writing as advised.
- Intention - The owner's intention when installing or attaching an item is a key factor in determining whether it's intended as a permanent fixture. A door knocker with their name or initials may be considered personal property.
- Agreement - This is the MOST important test - what has the seller and buyer agreed to?
- Avoid Relying on MLS Listings: Statements in MLS listings are not legally binding and the MLS typically says that the information is deemed reliable but not guaranteed to be accurate to avoid liability. Always confirm inclusions and exclusions in the purchase and sale agreement
- Consult a Real Estate Professional: Engage a real estate agent. Don’t go it alone. You are not a professional and a home purchase or sale is too important a transaction to represent yourself.
Remember, in real estate transactions, assumptions can lead to serious complications. To ensure a smooth process, make written agreements.
And call or text me when you want a Southaven Real Estate Agent, an Olive Branch Real Estate Agent, A Horn Lake Real Estate Agent or A Northwest Mississippi Real Estate Agent.
