Often times in a real estate transaction there is a question as to whether an item conveys with the home. Typically the issue presents itself at final walk through when the Buyer is assuming an item is transferring with the home, however, it’s not there and the seller’s have taken it with them. Generally speaking, the contract controls, however the Virginia courts have provided important information regarding what constitutes a fixture.
Sellers and Buyers alike should understand what constitutes a fixture or whether an item is personal property, so as to not have unrealistic expectations when they perform the final walkthrough.
What is a fixture? A fixture is an item that is physically attached to the home that is intended to remain a permanent part of the home. If an item in a home is not a fixture, then it is simply personal property. The Virginia Court of Appeals stated in John David McBride v. Commonwealth of Virginia , that considering whether an item is a fixture is a question of fact. Further, courts look to other factors such as the ability to remove the item without substantial damage to the home, the actual intent of the homeowner, whether the item was specifically designed for the home, and whether it was installed for a temporary purpose.
For reference purposes, the following items may be considered fixtures: chandeliers, HVAC unit, projector built into the ceiling of a home, projector screen built into the wall, hot tub built into a deck, and heavy machinery in a commercial building. Contrariwise, the following may be considered personal property: garage door opener affixed in a garage, air compressor that is simply plugged into an outlet, car lift in a private garade (however a car lift in a commercial business may be a fixture), hot tub placed on top of a deck, projector and screen that can be easily removed, and a mounted TV.
The best way to ensure there is clarity between both parties, though, is to clearly disclose on the listing agreement and on the contract, which items are meant to convey with the home. If there is any question between the parties, the contract will control the situation. If there is doubt as to whether something will convey, it needs to be in writing.
- Posted by Hanger Law
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