Should it Stay or Should it Go?

by | Feb 17, 2017 | Legal Tips

An often overlooked provision in the contract is the paragraph concerning fixtures.  Fixtures can be a tremendous area of contention between parties particularly when a seller removes an item that the buyer thought should convey with the house. When determining whether an item is a fixture, the court in Hyman v. Wellman Enter., 337 SC 80, 84 (Ct. App. 1999) held that the following factors should be considered:

  1. mode of attachment;
  2. character of structure or article;
  3. the intention of the parties making the annexation; and
  4. the relationship of the parties.

Most South Carolina contracts, including the Central Carolina Realtors® contract, lists the various fixtures that convey with the property. The real estate agent should not gloss over this paragraph when explaining the contract to the their client.  Rather, the agent should pay particular attention to what the contract considers a fixture. For example, does the contract address playsets, bathroom mirrors or TV wall-mounts? Be sure to point these items out to your client so they are aware of the expectations of the parties.

Secondly, when in doubt, write the item in the contract.  If your buyer wants the playset, then write “playset to stay with property” in the additional terms section of the contract.  Lastly, if your seller does not want an item to convey with the property, have the seller remove the item from the house prior to showing the home.  The vast majority of arguments concerning fixtures can be avoided if the real estate agent sets the clear expectation of the parties upfront by explaining the contract and then by reminding the seller of what not to take when packing the home.

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