The Nuts & Bolts of Fixtures

By James Zitesman
Attorney at Law

I received a call a few years ago from a lady who had sold her house and moved a few blocks away. I had met her socially and so she called me for some free advice. The buyer was complaining that the seller had removed the control box for the invisible fence and wanted the seller to return it. The seller told me that she took it because it is an expensive item and she intended to use it at the new home. The contract used in the transaction was the CBR Residential Real Estate Purchase Contract.

I asked her whether the contract had specified that the control box would be taken by the seller and excluded from the sale. She said no. I asked her where it was when the buyers saw the home. Well, it was on the wall in the garage. How did she take it off the wall in the garage, I asked. With a screwdriver, how else could she take the screws out, she replied. I suggested that she take the control box back to the buyer and apologize for the misunderstanding. She had removed a fixture.

Black's Law Dictionary defines fixtures as, "A thing is deemed to be affixed to land when it is attached to it by roots, imbedded in it, permanently resting upon it, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws." My general rule of thumb is that if you need a tool to remove it, it is a fixture.

Recently a REALTOR® called me about whether a basketball pole and hoop were fixtures. The pole was bolted to the concrete next to the driveway. The seller's agent said that the seller was going to take the pole and hoop, but would leave the bolts. The attorney for the seller said that since it was outside the house, it needed to be explicitly stated as included in the sale. In my opinion, he was absolutely wrong.

The contract states in the first paragraph, "The undersigned Buyer agrees to buy and the undersigned Seller agrees to sell, through the Broker referred to below, upon the following terms, the premises located in the State of Ohio?"

In 2003 when we were working on the big revision of the contract we searched for the right word to use for what was being sold. We considered "property" and "home" and "house" but it was the word "premises" that really worked. Black's Law Dictionary defines premises as, "Lands and tenements; an estate, including land and buildings thereon; the subject matter of a conveyance."

Combining the definitions of premises and fixtures, there should be no question as to what is included. Paragraph 3.1 lists many common fixtures for convenience. It starts out with, "The consideration shall include any fixtures, including but not limited to:" and then follows the list.

It is important to understand that the fixtures included are not limited by the list. It is simply there as a way to assist buyer and sellers in understanding what some common fixtures are.

Gas fireplace logs are not on the list. As I understand the gas fireplace log possibilities, they may be attached to the gas line or they may be simply resting on the grate. Therefore, when the transaction involves a home with gas fireplace logs, you may want to clarify the issue.

Other common fixture issues included mirrors, attached vs. hanging. Speakers that are attached to walls or ceilings by bolts or screws are fixtures, not just the brackets. Flat screen TVs are becoming another hot issue. If you need a tool, it is a fixture. The nature of the item is not relevant; it is how it is attached to the premises that defines the item. So if there is a flat screen TV attached to a bracket by bolts or screws and the bracket is similarly attached to the wall or ceiling or built-in cabinet, it is a fixture.

Another point to be aware of is the possible replacement of included items with lesser value items prior to closing. For example, if the sale includes the washer, dryer, refrigerator and stove, you may want to specify that it is the items as first viewed by the buyers. If you are really concerned, you may want to write out the make and model. A front loading Bosch clothes washer and dryer set may be more desirable to the buyer than a no-name top loading model.

Sometimes I will find references to the MLS information. In the event that the buyer wants to include all appliances and fixtures listed on the MLS, you should consider printing out a copy and attaching it to the contract as Exhibit One.