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Put 'Fixtures' in Sales Contract

By Benny L. Kass
Saturday, April 2, 2005; Page F03

We have signed a contract to buy our first house. Before we signed the agreement, there were two refrigerators in the house -- one in the kitchen and the other in the basement. The real estate agent told us that both refrigerators would stay with the property. Settlement is scheduled for next week, and now we have been advised that the basement refrigerator will be removed. I do not understand when a refrigerator is a fixture and when it is not.

An item, standing by itself, may not be a fixture, but when made part of the property, it can change its characteristics.

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For example, a kitchen sink that you buy is personal property. But once it has been installed in your house, it becomes a fixture and is part of the real estate.

Generally speaking, and in the absence of a contractual agreement to the contrary, fixtures remain with the house. Personal items can be removed by the seller.

As you can see, it makes a difference if an item is characterized "personal property" or "fixture." For example, can a seller take a removable wet bar from the basement, even though the plumbing is hooked up? Does a window air conditioner convey with the property?

The courts have applied a number of tests, including:

• The manner in which an item is attached to the real estate. If an article can be removed without substantial injury to the building, it is generally held to be personal property.

• The character of the property and its adaptation to the real estate. If, for example, an article was fitted or constructed for a particular location or use in a house, one can argue that it becomes a permanent part of the building, and thus a fixture.

For example, the courts have held these items to be fixtures: pews in a church, screens and storm windows specially fitted to a house and electronic equipment installed on a floor specially constructed for it.

• The intention of the parties. What would the average person consider the property to be? Gas stoves, for example, are intended to remain in a house permanently, and thus are fixtures. Murphy beds fastened to the wall on pivots are considered fixtures, but roll-away beds that are not fastened to the wall are not fixtures except in Wisconsin.

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