Question: Several weeks ago, we found a house we liked. We went back to the house three times before making an offer; we wanted to make sure that this was the house we wanted to buy. Our offer was accepted. At all times prior to the signed of the contract, there were two refrigerators. One was in the kitchen and one was in the basement. The real estate agent told us that both refrigerators would stay with the property. Settlement is scheduled for next week, and we have now been told that the basement refrigerator has been removed. I do not understand when a refrigerator is a fixture and when it is not.

Answer: Your question has stumped a lot of people, including several law professors to whom this question was posed.

There is no easy answer as to what is a fixture. An item, standing by itself, may not be a fixture, but when made part of the property, it can change its characteristics.

For example, a kitchen sink in a plumber's shop window is personal property. Once it has been installed in your house, however, it becomes a "fixture" and is part of the real estate.

Generally speaking, and in the absence of a contractual 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 characterized "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 item is attached to the real estate. If it can be removed without substantial injury to the building, it is generally held to be personal property.

• The character of the item and its adaptation to the real estate. If, 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.

• Custom and practice in the area. I find it amusing that in California, for example, it is customary that refrigerators do not necessarily convey with the property, while in this area the custom is just the reverse. 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 equipment installed on a floor specially constructed for it.

• The intention of the parties. What would the average person consider the item to be? Gas stoves, for example, are intended to remain in a house permanently, and thus are fixtures. 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 fixtures (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.

Furthermore, if the seller or the real estate agent verbally informs you that a particular item will convey, make sure this is spelled out in the real estate contract. If you want the refrigerator to convey with the property, put it in the contract to avoid any confrontation in the future. It's a simple one line sentence: "two refrigerators will convey".

Too many homebuyers are often disappointed because they relied on what the agent or the seller said -- or what they thought the agent said -- and just did not reduce those representations to writing into the sales contract.

In your case, I would argue that the second refrigerator stays with the property. This is based not necessarily on the fact that it is a fixture, but on the promises made by the seller's agent -- and on which you relied.

For more articles by Benny Kass, please press here.

Published: July 9, 2001

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