The Fridge Is Missing. Who's at Fault?

Q: We bought a home a couple of months ago and moved into it last week. Because we are from out of town, our real estate agent did the final walk-through the day before closing. She found everything to be in order. When we moved in, the refrigerator/freezer was missing from the kitchen. The multiple listing service sheet for the property stated that the refrigerator was included in the purchase price. Our agent discussed this with the seller's agent, who said it was not part of the purchase because we never stated in writing on the legal contract that we wanted it to stay. We didn't know that because it was on the listing. Our agent said she has never encountered this issue. We did not request the oven, microwave or dishwasher, but they conveyed.

During our agent's walk-through, the refrigerator was still there even though all furniture and personal items had been moved. Do we have any legal avenues? We had to buy a new refrigerator/freezer even though we feel we already bought the original one. We think we were scammed.

A: I am not sure that you were legally wronged.

You should carefully review the sales contract you signed. Does it incorporate by reference the multiple listing service's description of the property? That would mean that all promises in the listing service document become part of your contract.

However, if the listing information was not made part of the contract, you may not have a case against your seller. The standard contract in the Washington area contains this language: "This contract, unless amended in writing, contains the final and entire agreement of the parties and the parties will not be bound by any terms, conditions, oral statements, warranties or representations not herein contained."

The standard contract also has a paragraph called "Personal Property and Fixtures." That lists a number of items -- including the refrigerator -- that are to be checked off to confirm whether they will convey with the property. If your contract does not have the refrigerator box checked, the seller was not legally obligated to leave the appliance.

A fixture is something physically attached to the property, such as a chandelier or a built-in wall cabinet. A refrigerator is not a fixture. While the custom in this area is that refrigerators convey with the property, in other places, such as California, they generally do not.

But custom is not law. It would appear that your seller took advantage of you by taking the fridge out at the last moment. However, if your contract is silent as to its status, you may be out of luck.

You certainly can retain a lawyer to review your situation, but the legal fee will probably be the same or more than you paid for the new refrigerator.

You should also discuss the situation with your real estate agent. If your sales contract contains the paragraph that lists what personal property is to convey, ask why the refrigerator was not checked off. It may have been an oversight on the part of your agent, but that oversight has cost you money. Perhaps your agent will share the expense with you.

Here are some suggestions for the next time you buy a house:

· Buyers are entitled to a pre-settlement walk-through. This should take place the morning of settlement, not the day before. It should be done during daylight hours so that the entire house can be carefully inspected. While I appreciate that you were not available to personally make the inspection, that was your problem. It is your house, and you should have personally inspected it.

· All blanks in a real estate sales contract must be filled in, even if you merely write in "not applicable." The paragraph that lists the personal property and fixtures has a box to be checked off as yes or no, and every box must be checked.

· If the seller makes representations to you, make sure they are reflected in your sales contract. If you cannot find space in the contract itself, use an addendum that incorporates those statements. And make sure that you incorporate by reference the multiple listing service document into your sales contract.

· You should inspect the house immediately after closing. By waiting a couple of months, you lost any leverage you may have had with your seller.

We are in a tight economy. Sellers who are facing a loss on their home may have no sympathy for their buyer. Unscrupulous sellers will want to strip the house of everything they can. This is especially true when the house is being foreclosed on. In many ways, buying a house remains a situation of "caveat emptor" -- buyer beware.

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site, http://www.kmklawyers.com.