Doug Kanter wrote:
that last question, I'd say common sense. If the BBQ's out in the
driveway when the realtor arrives with a couple of lookers, can it be
considered part of the house?

It depends on whether it's a built-in or a free standing BBQ. A free
standing BBQ is furnature. Personal property. Not a fixture. Not part of the
real property.

A built-in is a fixture, not matter how easily it can be removed. If a
fixture is normally removed seasonally, then it's still a fixture even if
it's not in place. It's not personal property. It's still part of the real
property. A buyer should perform due dilligence to make sure that the
missing fixture still exists, and will be left for them, but lack of due
dilligence by the buyer doesn't necessarily take the seller off the hook.

If the lookers aren't gardeners, and don't realize that in their
particular climate, cannas come out of the ground in the winter, can they
seriously expect to make an issue out of the plants? In this case, the
"right thing" is to save the lives of the plants.

I never said not to save the life of the plants. The "right thing" is to
take down storm windows in the summer, too. But those actions do not affect
whether the items are fixtures, and part of the real property. The "right
thing" I'm referring to has to do with how you handle fixtures that will not
be part of the sale of the real property.

Technically, if it's the season that the bulbs should be out of the ground,
those bulbs are still part of the real property, and should be available to
the buyer to replant at the correct time. If that's not the intention, and
the seller wants to take the bulbs with them, they need to handle the
situation just like any other fixtu Either replace the fixture with
something else prior to putting the real property on the market, or
specifically exclude the fixture from the sale by including that exclusion
in the sales agreement.

--
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.
Have an outdoor project? Get a Black & Decker power tool::
http://www.holzemville.com/mall/blackanddecker/

Let me clarify one of my points.

I said, "Why not do the right thing?"

There are essentially three reasons: Accidential ommission, ignorance, or
fraud. Accidental ommission and ignorance can save a layman from punitive
damages, but if the issue is raised, they'd still have to take corrective
action, or compensate the buyer. Any broker involved cannot plead ignorance
about whether something is a fixture or not. They may be able to claim
ignorance of your unilateral actions, but if they know you did something,
even if you did it out of ignorance, their duty is to say something.

There also is a very real possiblity that the buyer may never realize that
anything is wrong, or that they have a cause of action. But what if they do?
Any broker that is aware of the situation, but gambles that the buyer won't
realize what they're entitled to is acting unethically even if the buyer
never realizes something is wrong.

The right thing is so simple. Either replace the fixture before putting the
real property on the market, or exclude it from the sale. Taking either of
these paths will resolve the issue completely. What is the incentive to
knowingly not exclude a fixture you're planning on taking with you from the
sale? The only incentive to not exclude the fixture from the sale is fraud.
Accidental ommission, or ommisoin because of ignorance is not an incentive.
Fraud is the only incentive. Are a few bulbs worth committing fraud?

What I'm asking is if you know that you're going to take a fixture with you,
other than fraud, what other incentive is there to not do the right thing?

--
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.
Have an outdoor project? Get a Black & Decker power tool::
http://www.holzemville.com/mall/blackanddecker/

"Warren" wrote in message
...
Doug Kanter wrote:
that last question, I'd say common sense. If the BBQ's out in the
driveway when the realtor arrives with a couple of lookers, can it be
considered part of the house?

It depends on whether it's a built-in or a free standing BBQ. A free
standing BBQ is furnature. Personal property. Not a fixture. Not part of
the real property.

A built-in is a fixture, not matter how easily it can be removed. If a
fixture is normally removed seasonally, then it's still a fixture even if
it's not in place. It's not personal property. It's still part of the real
property. A buyer should perform due dilligence to make sure that the
missing fixture still exists, and will be left for them, but lack of due
dilligence by the buyer doesn't necessarily take the seller off the hook.

If the lookers aren't gardeners, and don't realize that in their
particular climate, cannas come out of the ground in the winter, can they
seriously expect to make an issue out of the plants? In this case, the
"right thing" is to save the lives of the plants.

I never said not to save the life of the plants. The "right thing" is to
take down storm windows in the summer, too. But those actions do not
affect whether the items are fixtures, and part of the real property. The
"right thing" I'm referring to has to do with how you handle fixtures that
will not be part of the sale of the real property.

Technically, if it's the season that the bulbs should be out of the
ground, those bulbs are still part of the real property, and should be
available to the buyer to replant at the correct time. If that's not the
intention, and the seller wants to take the bulbs with them, they need to
handle the situation just like any other fixtu Either replace the
fixture with something else prior to putting the real property on the
market, or specifically exclude the fixture from the sale by including
that exclusion in the sales agreement.

Based on this logic (and you KNOW I'm kidding), fake leaves should be glued
to the trees if the buyer made the purchase offer before autumn.

Doug Kanter wrote:
Based on this logic (and you KNOW I'm kidding), fake leaves should be
glued to the trees if the buyer made the purchase offer before autumn.

I'll accept that you're kidding, but I don't get what you're saying at all.

"Warren" wrote in message
...
Doug Kanter wrote:
Based on this logic (and you KNOW I'm kidding), fake leaves should be
glued to the trees if the buyer made the purchase offer before autumn.

I'll accept that you're kidding, but I don't get what you're saying at
all.


Warren, your explanation of your viewpoint is legally and logically
beautiful, and it sounds like you're either a lawyer or an experienced
realtor. 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. 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.

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.

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.
Have an outdoor project? Get a Black & Decker power tool::
http://www.holzemville.com/mall/blackanddecker/

"Warren" wrote in message
news
The loose bulbs are still fixtures just as storm windows are fixtures in
the summer. Very simple.

I doubt that very much, but....oh well.