Disagreements and uncertainty are common regarding what buyers and sellers think remains with a home when it sells. The standard contract verbiage indicates that fixtures remain and personal property can be removed by the seller.
However, the line between what is a fixture and what is personal property is sometimes unclear and open to interpretation.
The standard Colorado purchase contract lists specific items that are fixtures and personal property that stays with the home. The contract states: “If attached to the property on the date of the contract, the following items are included unless excluded under exclusions: lighting, heating, plumbing, ventilating and air condition systems, TV antennas, sprinkler systems and controls, built-in vacuum systems, garage door openers and controls.”
The following personal property is included whether attached or not on the date of the contract unless excluded under exclusions: “storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings, curtain rods, drapery rods, fireplace inserts, fireplace screens, fireplace grates, heating stoves, and storage sheds and all keys.”
The lists in the contract seem comprehensive. However, there are many items that may be considered a fixture or personal property by buyers and sellers. Some examples of these items are: freestanding stoves and refrigerators, window air conditioning units, bookcases, hutches, wall mirrors, hat/coat racks on walls and washers/dryers are common items whose nature are sometimes disputed.
One attorney has the opinion that any item that can be removed without tools is personal property; conversely, any item that requires a screwdriver to remove is a fixture. So based on this interpretation, a free-standing refrigerator with an icemaker hose is a fixture, and one that could be removed by simply unplugging it is personal property. All gas clothes dryers would be fixtures because disconnecting the gas line requires a wrench; washing machines with tight hoses that require a tool to remove are fixtures and those with hoses that can be removed by hand are personal property.
Experienced and knowledgeable brokers are proactive and will identify “gray area” items and list them as fixtures or exclude them from the sale. Sellers’ brokers will often list items that are definitely fixtures as being excluded when they list the property for sale, an example of this would be a chandelier with sentimental value. Buyer’s agents should list any “gray area” items that their client is expecting to remain with the property when the initial offer is submitted.
The bottom line is for both agents to clarify and get the parties to agree on what will be remaining at closing and what will be removed as early as possible. The alternative is to have an item removed that the buyer expected to remain and negotiate a solution at or near the closing date.
Steve Setka is an exclusive buyer’s agent with Keller Williams Realty in Durango and a licensed mortgage originator. He can be reached at 903-7782 or steve@durangore.net.
