Doug Kanter wrote:
Warren, your explanation of your viewpoint is legally and logically
beautiful, and it sounds like you're either a lawyer or an experienced
realtor.
I am a Realtor (r).
But, even the law allows for the fact that logic doesn't jive with
reality. If we're talking about a climate like mine, where cannas are
virtually guaranteed to die if left in the ground through the winter,
you're saying that they should be left in the ground.
I NEVER said any such thing. I never even implied or infered such a thing.
In fact, I think I implied the oposite.
Leaving the cannas in the ground when they should have been lifted would be
neglecting normal maintenance. You don't get to stop maintaining the
property upon acceptance of an offer. You still have to mow the lawn. You
still have to vaccuum the carpet. You still have to fix a roof that starts
leaking. You're still the care taker of the property. Not lifting the bulbs
when they should be lifted is neglecting your responsiblity to maintain the
real property.
Or, maybe I should dig them up, put them in a box, and give them to the
buyers with a photograph of their previous location, and planting
instructions.
Just like storm windows, if you seasonally remove a fixture, the fixture
should remain on the property. Whether you bother to give the new owner
instructions is up to you. Plenty of homeowners have discovered that each
storm window only fits over a specific window, and the previous owner left
no instructions. It's not a very nice thing to do to the next owner, but
it's not required that you're nice. It's only required that you not take
fixtures with you unless you have an agreement to do so.
But, based on that logic, a buyer (albeit an intensely stupid one) could
go to court and say that when they put in their purchase offer, in early
September, there were leaves on the trees. However, when they finally took
possession in mid-October, the trees were bare and they now want some sort
of compensation. After all, those leaves were as much a part of the
landscape as the cannas.
I'm not following why you think falling leaves has anything to do with the
discussion.
The tree is a fixture. If you cut down, removed, or significantly damaged
the tree, there's a problem. But I don't understand how that has anything to
do with falling leaves. I don't follow how you can even twist the theory of
what's real property and what's personal property around to something as odd
as this. Your thought is definitely not following any kind of logic.
How did this become such a big deal? Plants are fixtures. Fixtures are part
of real property. When you sell the real property, the fixtures go with the
property. If a seller wants to remove a fixture, that needs to be part of
the agreement with the buyer. The property and the fixtures need to be
properly maintained by the seller between accepting an offer, and turning
over possession after closing.
If maintain the plant involves lifting the bulbs, then that process
continues regardless of what's happening with any sale of the property. The
seller continues maintaining the property as long as they own the property.
Once the buyer takes possession the buyer can do whatever they want with the
landscape (within the laws and CC&R's). At that point they, the new owner,
can dispose of any of the fixtures as they see fit.
There's nothing complex about this whole process. The problem comes when the
seller doesn't recognize a fixture is a fixture. And plants, with the
exception of the harvest from annual crops, are fixtures.
Remember to treat your cannas as fixtures. That is, if you intend to take
them with you, it needs to be part of the agreement with the buyer. If you
don't intend to take them with you, they need to be properly maintained. If
that includes lifting them for the season, so be it. The loose bulbs are
still fixtures just as storm windows are fixtures in the summer. Very
simple.
--
Warren H.
==========
Disclaimer: My views reflect those of myself, and not my
employer, my friends, nor (as she often tells me) my wife.
Any resemblance to the views of anybody living or dead is
coincidental. No animals were hurt in the writing of this
response -- unless you count my dog who desperately wants
to go outside now.
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