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Am I selling the fixtures?

QUESTION:

I told my neighbor that I am about to list my house for sale. She said she knew that her family would really miss our above-ground pool. I thought that the pool would be included in the sale as a "fixture" because it is secured to the ground. Am I wrong? What goes and what stays? And who is responsible for repairing the lawn and patio beneath the pool if we do take it?

ANSWER:

The sale of property includes the house, the property and all fixtures; but defining exactly what constitutes a fixture is not always easy.

Before you place your house on the market, make a list of everything that you wish to remove that might be considered a fixture. If you plan to take the above-ground pool, for example, list it. Also, list the exact location of each of these items. The refrigerator in the garage, for example, should be listed as exactly that.

If you are not sure if something is a fixture but you are sure that you wish to keep it, exclude it specifically from the sale. It might be difficult to remove it after the sale if the buyer has considered it a fixture. If you remove it without the buyer’s consent, this may be a breach of contract.

You can also choose to sell items that are clearly not fixtures to the buyer. But these should be listed in a separate personal property sales contract. If neither you nor the buyer wants an item, the purple coffee table that Aunt Gloria gave you, for example, it is your responsibility to remove it from the house.

Property is seldom perfect. There can be wear and tear; but if defects exist, the buyer should be told of them. The buyer may have legal recourse if the defect is considered material but not discovered until after the sale. A defect is considered to be material if a reasonable person would not have bought the property if he had known of the problem, or if the value of the property is significantly reduced because of the problem. The patio beneath the pool might be considered a material defect if it is seriously damaged.

Misrepresentation occurs when the buyer is deceived in order for the sale to take place. Deception occurs when a seller neglects to disclose a problem such as recurring flooding in the lanai. It also occurs when the seller hides the problem such as painting the floor of the lanai to conceal the water damage.

It is best to address defects and what fixtures will be included in the sale before an offer is accepted. Disclosure can minimize the chances that your above-ground pool, who keeps it, and what problems it conceals could eventually get you "in over your head" in a legal battle.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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