The sale of a home means somebody moves out and someone moves in. Anyone who has every moved knows that moving involves lots of stuff --boxes and boxes of stuff.
In the context of a real estate agreement the "stuff" in a home comes in two varieties: chattels or fixtures. Chattels are moveable property usually held in place by their weight alone. Fixtures are chattels that have become, well, fixed, attached to the house. It's the difference between the kitchen table (chattel) and the sink (fixture); pots and pot lights; or free standing dishwashers and built-in ones.
The difference is important because, generally, a purchaser doesn't buy the chattels as part of the agreement but the fixtures go with the home when it's sold. Most agreements include a section for the parties to negotiate exceptions: chattels they want to include in sale (e.g., appliances like a fridge, washer/dryer, etc.) and fixtures to exclude (e.g., expensive light fixtures).
The distinction is not always easy. Some classic grey area "stuff" may include wall mounted items like mirrors, TVs or even certain shelving; and large outdoor items like hot tubs, certain sheds or even floating docks.
Where the agreement is silent, resolving a dispute (e.g., where the seller says the item is a chattel and buyer insists it's a fixture) will be a question of fact. The determination will be specific to the item at issue on a case-by-case basis n the context of the transaction and the real property sold. Courts will look at factors like the item's size, weight and use.
Of course, there is an economic and practical reality here. Nobody (including your lawyer) wants to go to court for a ten year old microwave. Although, the more expensive or desirable the item, the more likely both sides will be willing to dig in.
So, it's best to avoid such a "chattel battle" (as I like to call them) all together.
For valuable items (whether that value is monetary, sentimental or utility), negotiate to have the item expressly included in the sale or excluded from the sale, as the case may be, in writing as part of the final agreement. Even if you don't know whether the item is a chattel or a fixture, there can be no ambiguity where the agreement sets out express inclusions or exclusions. By doing this, the buyer and seller will have a clearer understanding of what stays and what goes; and, at least one of them will have less stuff to move.
Adam Kowalsky is an associate at the law firm of Cobb & Jones LLP.