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If a wall unit is attached by a hook or other device that can be easily removed, then it may not be included with the house.
When there is confusion about what fixtures are to remain in a home after closing, it often ends up in court. The lesson is to be careful and clear when you write up your contract so you don’t have to sue later.
In 2009, Mark and Denise bought a house in Ajax. The listing said a “built-in” bookcase in the recreation room was included. This bookcase was 19 feet long and 7 feet high.
The couple’s offer said that all “built-in cupboards” and permanent fixtures were included in the price, but when they moved in, the bookcase was gone. The sellers said it was a mistake that it had been included in the listing and since the bookcase was not attached to the wall, it was not a fixture.
The agent admitted that the bookcase was mentioned in the listing by mistake. The buyers complained to the Real Estate Council of Ontario. The council ruled that the error was made by the listing agent, and that the sellers were not properly protected and the buyers were misled by the false advertising. However, the council does not award damages, so the buyers had to sue in small claims court for the cost of the bookcase.
In court, the seller’s daughter testified she was present when the buyers toured the property and were told explicitly that the basement bookcase did not go with the house. The buyers admitted they did not closely examine the bookcase to see whether it was attached to the wall. In a decision on September 2, 2011, Justice Albert Cooper accepted the daughter’s evidence and noted that the buyers offered no evidence to contradict her story. He ruled that the buyers were not entitled to the bookcase.
I had a situation where the offer said “built-in microwave.” The microwave was not built-in so the sellers took it with them. The buyer complained after closing. When I asked the sellers whether there was another microwave in the kitchen, they said no. So I asked them, what did you think the words built-in microwave meant? They could not answer and eventually agreed to give back the microwave.
When you are buying any home, you can never get too detailed about what you expect to be included. Ordinarily, the rule is that if it is attached to the house, it is a fixture and it stays with the house. If it is not attached, then it is considered a chattel, and it doesn’t stay with the house unless the buyer includes it in the contract.
Try to avoid general statements such as “built-in.” They may not be built in after all and may only be attached by a hook or other device that can be easily removed. Instead, be careful to list the make and model number of all appliances, and also note the colour and location of any drapes, carpeting, closet organizers, cabinets, bookcases, mirrors, pool equipment, satellite dishes, barbecues, sheds, garage door openers and anything else that you expect to be on the property after you move in.
Take pictures of the items during your home inspection so that you have proof in case the seller tries to replace anything with cheaper items.
By being careful and clear when you write your contract, you can avoid aggravation after closing.
– Mark Weisleder is a Toronto real estate lawyer. Contact him at email@example.com