Andrew Wetzel's Musings

August 4, 2017

Personal Property: Included or NOT?

Filed under: Uncategorized — awetzel @ 1:06 PM

Buying and selling Real Estate (often referred to as real property) can be complicated enough even when the process goes smoothly.  Too often, seemingly minor or avoidable distractions threaten to derail the process.  The topic of personal property is a perfect example.

Properties are either marketed when occupied or vacant and they may or may not have “personal property” in them when viewed.  What is being sold?  What is being purchased?  Generally speaking, the physical building and its fixtures are the product being offered to the public.  What the buyer is seeking may be a different but complicating matter.

In the PA Standard Agreement For The Sale Of Real Estate, in Paragraph 25 (“REPRESENTATIONS (1-10)“), it is assumed that the “Buyer has inspected the Property (including fixtures and any personal property specifically listed herein (meaning listed in the Agreement) before signing this Agreement or has waived the right to do so, and agrees to purchase the Property IN ITS PRESENT CONDITION….”.  In Paragraph 7 (“FIXTURES AND PERSONAL PROPERTY (9-16)“, a Buyer’s Agent should specifically list any personal property that the Buyer was requesting to be included or excluded from the Agreement.  Regardless of what was advertised as being “included” or “excluded” elsewhere, this paragraph IS the basis for both parties agreeing to whatever is noted.

The Buyer can request/ include something(s) the Seller did not intend to provide and/ or exclude something(s) the Seller intended to provide.  The Agreement/ purchase offer starts the negotiating process.  Admittedly, it may start off on strong footing or derail at the outset so an agent and their client have to discuss “the plan” which should factor into the equation the Buyer’s urgency, the type of “market”, whether there is likely to be competition and what it might take to compel the Seller to accept the offer or, at the very least, feel comfortable going back and forth.  Inclusions and exclusions can be an issue!

One of the distractions, frankly, is the “Sellers Property Disclosure Statement”.  The usage of the form itself offers a somewhat mixed message.  On the surface, Buyers expect that the Seller has completed the form as honestly and accurately as possible.  While inspections may determine that there are undisclosed or understated issues, it is generally hoped that the Seller reported what they knew so that the Buyer could rely on it.  On the other hand, Paragraph 16 (“OTHER EQUIPMENT AND APPLIANCES“) deviates from this general understanding.  There is specific language preceding a series of check boxes (“This section must be completed for each item that will, or may, be sold with the property”)  followed by language stating that the list is not conclusive and that the Agreement itself determines what is included in the selling price.  The paragraph concludes by asking the Seller to identify and explain any problems or repairs needed for the items in the check boxes.  Hmmm.

While I see the merit of listing some items that people may miss during a sale (such as items related to garage door openers), I respectfully wonder why the “fixtures” would not be included in their relevant sections in order to avoid having Sellers list things they have no intention of leaving?  I ask my Sellers to specifically circle the words “will, or may,” or, even better, do NOT list anything that is not meant to be included!

There always seems to be some confusion about the word “fixture” (read the paragraph to see what I mean).  We complicate this by what we list in the MLS, in property “highlight sheets” and on the disclosure form.  Sometimes those “sources” conflict, making us stop to ask questions which could put a Buyer at a disadvantage by delaying the preparation and presentation of their offer.

The “best practice” is to confirm the Seller’s intention if possible prior to writing an offer.  Either way, unless something is written into an Agreement and  executed by both parties, you have nothing.  Perhaps a Seller will ask their agent to contact the Buyer’s agent to see if they want one of more items to be left for them.  That too must be put into writing and fully executed.  Some Sellers will leave things they think the Buyer will want, only to find that the Buyer does not need or want them which may cause an issue at closing.

I have seen and heard of a number of situations where an otherwise uneventful property sale got complicated by miscommunication, poor communication and/ or assumptions being made by one party without the agreement of the other.  It is best that a listing agent discuss this with a Seller at the outset and then make the Seller’s wishes known.  If something changes, make sure that it is promptly communicated (people do change their minds!  Sellers may find that they need or do not need a particular appliance).  Buyer’s agents must discuss this with their clients as well to make sure that the Buyer’s wishes and the Agreement are in agreement.  Imagine doing a pre-settlement walk-through and finding that something you expected to see was not there?  Finding something you did not expect to see may also be an issue.

There is so much more to buying or selling Real Estate than simply identifying properties to see.  OUR job really starts after a buyer becomes interested!

HIRE WISELY!

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