Be sure to nail down what’s nailed down–and isn’t


(Flickr photo by K. W. Sanders)

Comes the traditional walk-through inspection just prior to closing and careless buyers may be in for unpleasant surprises.

Not just a leaky pipe. Or a pile of trash, a stove that doesn’t work or water that won’t flow from a faucet.

Each of those eventualities can and does occur. Each can be remedied at closing. However, another one can make for a tempest at the table.

The worst and most contentious surprise can be what sellers take with them–a chandelier or flat-screen television, a bookcase that only looked built-in or a designer washing machine.

Customs vary by housing market. When I had a real estate business in Washington, D.C., we knew that whatever was attached to a wall, ceiling or floor went with the property.  The law calls them “fixtures,” and the law says they are part of the real estate being sold.

When sellers wanted to take something with them, listing brokers went so far as to label them prominently and then specify exceptions in the contracts that we buyer and seller representatives–not lawyers–completed.

The only time that trouble arose was when someone failed to note the exception.

Nothing should be taken for granted here either. Scrupulous brokers will inform buyers at the outset what is not included, though I have never seen a label or come across a notification in a listing.  As a result, instances of overlooked exceptions occur regularly.

Indeed, items effectively nailed down may be gone before closing, though that’s a no-no.

Buyers here should not expect that the television goes with the apartment or that the Murphy-bed cabinet will remain. They should ask, their brokers should ask and their lawyers should ask again, putting everything into the contract, what does not remain in the property.  (Flat-screen TVs almost invariably go, while their brackets are supposed to stay.)  Are air conditioners stored out of sight in winter part of the sale?  Gotta ask.

At the same time, sellers should not be cute in pretending that nothing will change, even hiding information from their broker. Nor should they think it’s okay to change their mind at the last minute and just tell the movers that they’ll probably need that bookcase in their new place after all.

I mentioned a walk-through immediately before closing at the beginning of this post, and I strongly support waiting until then.

Waiting paid off for buyers of mine who were about to close on a single-family home in Maryland several years ago. There had been a windy rainstorm the previous day, and–you guessed it–a tree limb had fallen, causing damage to the property. Because of the late inspection, it was the sellers, not the buyers, who bore the expense of repairs.

Mine also is the position of real estate lawyer Harvey S. Jacobs, whose detailed Washington Post column on the contents of a property about to change hands is well worth reading.

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Malcolm Carter
Licensed Associate Real Estate Broker
Senior Vice President
Charles Rutenberg Realty
127 E. 56th Street
New York, NY 10022

M: 347-886-0248
F: 347-438-3201
Web site

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