Managing Disputes Concerning Fixtures and Personal Property in New York Real Estate Closings

chandelier.jpgMany parties to real estate transactions focus not only on the house or the apartment that is involved in the transaction, but also on fixtures and items of personal property. Should a buyer expect that all lighting fixtures are included in the deal? What if a seller wants to take certain items with him? This post will address these issues.

In New York, generally a seller will remove all easily movable items from the apartment or house being sold. These items include furniture, clothing, personal articles and the like. Of course, a buyer will want the seller to remove these items before closing and will be justified in refusing to close until the premises is in “broom clean” condition, as is required in the standard contract. Appliances, such as the refrigerator and stove, are to remain in the premises, as is covered in most standard contracts that we negotiate on behalf of our clients.

Fixtures may not as obvious. A fixture is an item that is attached to the wall, floor or ceiling. A built-in bookcase is not furniture to be removed by the seller, as it is attached to the wall. Chandeliers, wall sconces and other lighting fixtures are expected to remain after closing. There are cases when a seller wants to keep a particular fixture after closing or other cases where a buyer wants to make sure that a beautiful chandelier is not removed by the seller.

Our firm has suggestions on how to handle these issues. Otherwise, the contract negotiation and the closing will be more difficult than they need to be. The parties should do their best to maintain a good rapport with one another, so that they will be unlikely to argue over personal items. As such, goodwill between the parties can develop if they start out friendly with one another, which goodwill may be useful if there is a dispute over whether an article is included in the sale.

The process to avoid misunderstandings starts with the real estate agent who lists the apartment for sale. If the seller is not using a real estate agent, she should be just as careful. The property listing should identify the articles of personal property and fixtures that are included and excluded. If the seller wants to take the window air conditioner units to his new house, he needs to list them as excluded in his apartment sale listing. The next step is for the buyer, when making her offer, to identify the items that she considers are included, supporting the price that she is willing to pay.

The real estate agents involved should then carefully draft the deal sheet, confirming that it is consistent with the listing and the accepted offer. When preparing the contract for the seller or negotiating the contract on behalf of the buyer, a skilled attorney will make sure that the fixtures and personal property contained in the listing and deal sheet are contained in the contract. This step is legally significant due to the “doctrine of merger”. A signed contract is deemed to override any prior understandings or agreements between the parties. For instance, if the contract excluded the chandelier, even if the listing included it, the seller will be able to take the chandelier when he vacates.

The reasons why disputes concerning fixtures arise are as follows. A chandelier may be so unique that it is difficult to imagine that the dining room could be as beautiful without it. In this case, the buyer does not want the house without the chandelier. The seller may want to remove an item that is essential to the buyer, such as a medicine cabinet. The buyer in this case may not care because she did not like the medicine cabinet and was going to immediately renovate the bathroom anyway. Another buyer may be angry that the medicine cabinet is removed because he liked it and now needs to obtain another one. Sometimes one of the parties is cheap or spiteful, removing light bulbs from otherwise working fixtures. A seller may be sentimental about an item and may have made a mistake in including it. A seller may also lack the knowledge as to items that should not have been removed. It is not unusual for real estate agents to purchase a replacement fixture in order to resolve a stalemate and proceed to closing.

We have experienced disputes concerning fixtures and items of personal property from all perspectives. Our attorneys would be pleased to assist you with this issue.

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