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Beyond the Kitchen Sink: Do Not Presume What Goes With the Property

John A. Viteritti

Everything plus the kitchen sink, but not the lighting accessories. (Courtesy Photo)

In real estate sales, presumption is often the root of most problems.

A license law requirement for real estate brokers should be, "never presume," and never say, "I don't see why not."

In my last article, I addressed how a real estate broker could help avoid problematic situations by clearly establishing with the seller and buyer their needs and abilities with respect to occupancy and transfer of title.

Another issue that should be addressed by the broker and seller at the time of listing is what goes with the property. It is not uncommon for sellers and buyers to make certain assumptions which may prove contentious in light of reality.
What about that very expensive, dining room chandelier you purchased in Venice on your 25th wedding anniversary? Does that go with the property? Or the high-tech appliances you are so enamored with? Can you substitute less expensive ones? And what about that luxurious out-door gas grill the kids gave you last Father's Day? Is that included?

While issues of this kind are likely to be addressed in the contract of sale between the seller and buyer, their expectations and misunderstandings arise before preparation of the contract by the attorneys.

Let's examine the question of the light fixture. The key to the answer is in the word "fixture." A fixture is considered part of the real estate and transfers with the property, no matter how expensive or "sentimentally attached" the seller may be to the fixture. But what is also true is that the seller may exclude the light fixture from the sale. So far so good, but the problem often arises when the seller assumes they may remove it from the sale and this is not communicated to the buyer who presumes inclusion. "Nobody told me the chandelier wasn't included," the "nobody" usually being the broker. "How would you like to cut your commission to pay for the missing light fixture?" Not a question brokers want to be asked.

What about the high-tech appliances? Stove, refrigerator, washer, dryer, dishwasher? The answer may depend on whether they are permanently attached to the home. A better answer is the broker should clarify the issue before listing and showing the property. Take nothing for granted. The seller may not take it upon themselves to substitute appliances with others. How would you, broker, like to cut your commission to compensate for the substituted appliances. There's that question again. The out-door barbecue, assuming free-standing, would be considered personal property and not included in the sale. The seller and buyer are free to agree otherwise.

Experienced real estate agents, in the Hamptons and elsewhere, have a myriad of horror stories to tell about how misconceptions among buyers and sellers regarding "what's included" can emerge in otherwise dignified surroundings at closings, from fisticuffs, name calling, often of the broker by all parties present, to refusing to close.

I invite any of our readers who have experienced these types of occasion to share their thoughts by making a comment here.

John is a St. John's University graduate, licensed Real Estate broker, DOS Certified Instructor, lecturer, teaches real estate license classes at Cook Maran Real Estate School, and is a well-respected consultant to the real estate industry. He previously taught at LIU and NYU. www.johnaviteritti.com

Added: November 22, 2013, 12:19 pm
Appeared In: real estate >> land and law