Q: When we first saw our new house in Fairfax there were two refrigerators. One was in the kitchen and one was in the basement. The real estate agent, we believe, told us that both refrigerators would stay with the property.
At settlement the other day, we were told that the basement refrigerator had been removed.
Our mortage lender, however, insisted on our signing a statement that the refrigerator remains a part of the house.
I don't understand when a refrigerator is a fixture ad when it is not.
A: Your question has stumped a lot of people, including several law professors I know.
There is no easy answer as to what is a fixture. An item, standing by itself, may not be a fixture, but when made a part of the property, it changes its char acteristics.
For example, a kitchen sink in a plumber's shop window is personal property. 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 agreement to the contrary, fixtures remain with the house. Personal items can be removed by the seller.
As one can see, it certainly makes a difference if an item is categorized "personal property" or "fixtures." For example, can a seller take a removable wet bar from the basement, even though the plumbing is hooked up? Does a window air conditioning unit convey with the property?
There are no easy answers to any of these questions. The courts have applied a number of tests, including:
The manner in which the article is attached to the real estate. If the article can be removed without substantial injury to the building, it is generally held to be personal property.
The character of the article and its adaptation to the real estate. It, for example, an article was fitted or constructed specially for a particular location or use in a house, one can argue that the article 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 computing equiipment installed on a floor specially constructed for it.
The intentiion of the parties.What would the average person consider the article to be? Gas stoves, fr example, are intended to remain in a house permanently, and thus, are fixtures. Te so-called "Murphy beds" fastened to the wall on pivots are considered fixtures, but roll-away beds that are not fastened to the wall are not (except in Wisconsin).
Going through this fascinating history of fixtures, one important caveat comes to mind.
When in doubt, spell it out in the contract. If you want the refrigerator to convey with the property, put it in the contract to avoid any confrontation in the future. Too many home buyers are often disappointed because they relied on what the agent said -- or what they thought the agent said -- and just did not put is down in writing.