I have several web sites for which I write blogs and sometimes it feels like I end up rehashing the same material for each of them. I highlight acreage living on my www.acreagenebraska.com site. I try to keep the folks in Dundee/Fairacres, where I happen to live, up to date on "Happenings in the Hood." And then I have the www.BerkshireHomesOmaha.com site, where I post real estate related articles. This is the site that I actually end up piggybacking on topics with my www.dickgibb.com site. So, I have decided to use the blog on the BerkshireHomesOmaha site to deal with the luxury end of the real estate market and this site a little different direction. This is the site where I will discuss things "not to step in" during your real estate transaction; the nuts and bolts of real estate law, if you will.

Our entire industry was developed to protect the public from real estate shysters who might try to pull the wool over the eyes of the consumer in order to put a little more money in their own pockets. The purpose of this blog will be to educate you, the consumer so that when you are ready to buy or sell your next home, you will more fully understand the process and avoid being taken advantage of or committing a legal faux pau yourself.

My first topic will cover how to determine what is considered a fixture according to the law. In other words, what needs to be left in the home when you move out or the Seller of the home you are purchasing, move out.

The law of fixtures: when personal property is permanently attached to a structure or land, by means of bolts, screws, nails, cement, glue or other permanent attachment, it becomes a fixture which is part of the real estate. At the time real property is sold, fixtures are automatically included in the sales price unless specifically excluded in the purchase contract agreed upon by all parties. So, for example, lumber sitting by the side of a house is personal property until it becomes a fence, deck or other semi-permanent/permanent structure. That oriental rug you got from Aunt Lue can go with you but that $30.00 a yard carpet you just installed in the living room has to stay. And, while you might think it absurd that I know of a seller in a high priced home that once took out all of their light bulbs before walking out the door, they were completely within the law to do so. The fixtures are permanent but the bulbs are not. Thankfully, most sellers leave the "lights on" for the buyer to make the move go more smoothly.

Basically the 5 rules the courts will use to determine whether or not an item is a fixture are as follows:

  1. The method of attachment. If the item is attached by bolts, screws, nails, glue, cement or other permanent methods, it has become a fixture.
     
  2. Adaptability for use with the property. For example, the speakers that are built-in to the cabinet in the family room stay with the home but the stereo system that feeds to those speakers plugs into the wall outlet so it is considered personal property and will follow the Sellers to their new home.
     
  3. The intent of the buyer and seller. If nothing is said in the sales contract about a fixture being excluded, it is automatically included. However, sometimes less-than-honest sellers think they can substitute a cheaper replacement. It is very important to write specific items in great detail that you are including the purchase price when writing an offer. Even take photos on your cell phone, just to be sure you get what you paid for. With that being said, understand what the Sellers are offering in the price they are asking. If the sales brochure mentions the above ground pool, it becomes a fixture and will be staying with the home. But, the expensive filtration system that wasn't mentioned in the MLS/sales brochure would not automatically be included.
     
  4. Agreement of the parties. To avoid misunderstanding, it is important to have a well-written sales contract specifying what is included or excluded. If you want that expensive chandelier in the dining room, specify it in your intent to purchase contract. 
     
  5. Relationship of the parties. In close cases, the courts favor a buyer over a seller, a tenant over a landlord and a lender over a borrower.

That's all I have for now. Check in next month when I will cover "Possession is 9/10th of the Law."

In the meantime, we do our best to represent both our Buyers and our Sellers with the highest level of integrity. We will be happy to provide references upon request. Please text us or give us a call if you are looking to make a move. We are here to help!

Best Always,
Dick Gibb