When the Seller Takes What They Shouldn't

Moving out of a house can get surprisingly emotional—especially when a seller takes what they shouldn't as they leave. Maybe it’s the large wall mirror, the cool smart thermostat, a custom light fixture, or even that little Japanese Maple they’ve babied for years. So what stays and what goes (can go)? That devil is in the details, and in Georgia, those details are in the Seller's Disclosure. It boils down to the definition of a "fixture" and how the seller completes the seller's property disclosure. Among other things, that document states what stays and what goes. Failure to understand this critically important document is the reason that this is the most common problem surrounding a home sale.

What is a Fixture

Georgia real estate contracts commonly define the “Property” as the real property including fixtures. Georgia guidance used in appraisal/tax rules defines “fixtures” as property that’s installed or attached and intended to remain permanently, with a key clue being whether removal would cause significant damage to the item or the property. Blah Blah - In short - is the item meant to stay with or an integral part of the home? Is it permanently attached - screwed / nailed / glued / wired / mounted or otherwise firmly secured? Would removing it cause damage, an inadequacy, or otherwise change the property's function? Common sense checks; things like switches, built in appliances, plumbing fixtures, HVAC systems....are fixtures that transfer. 

The Seller Dictates What Remains

The rule in most states, including Georgia, is pretty simple: if it’s a fixture, it stays. Sellers do however, have the ability to stipulate what stays and what goes. If a seller wants to take something that might be considered a fixture, the safest move is to exclude it explicitly. The Seller's Property Disclosure contains a section dedicated to just this; here seller's complete a checklist of what transfers with the home.

Those highlighted portions are key for both buyer and seller, read them. While many things on this list seem obvious, sellers can often run into trouble by not being specific. One of the most common issues surrounds refrigerators; if there are more than one, it is critical to specifically note which go or stay. Another regular hiccup involves TVs and TV mounts. TVs disappear, wall mounts remain, but the part attached to the TV is often accidentally packed. What about remotes and sound bars? It's critical to be clear. We've seen disagreements over gas in LP tanks, Tstats, car chargers, and more. Detail everything.

Buyer Beware in Georgia

Georgia is a buyer beware state. Seller's disclosures are expected to be fully and accurately completed by the seller, but the onus for verifying everything is on the buyer.  Be proactive; thoroughly review the fixtures section, ask questions. It's easy to simply add a stipulation for clarity in the contract - "all parties acknowledge and agree that both the kitchen and garage refrigerators transfer...". Post inspection, things may be added in lieu of repairs. Again, a simple amendment keeps things in order. EVERYTHING in writing is the best policy.  

Buyers should never forget - disclosures might not be completely accurate, best to use them as a guide only. In some cases, it might appear that a seller is misrepresenting, unclear, or flat lying about things. Can it be proved that the seller lied on the seller's disclosure? Over the years, post closing issues have popped up that buyers are convinced were undisclosed by the seller. If someone lies on the disclosure, there are legal options but the bar to prove this, the cost to bring action, and collecting if you win, can be daunting. Knowing how to navigate the due diligence period effectively is the key.   

Read that again. Maybe it's not the seller; maybe it's a buyer ignorant of the real estate laws and process in Georgia. Truth be told, that's as often the case, not reading and understanding the leal, binding contract that they signed. That is often a result of not treating this process as the significant event and legal process that it is. The discount agent, AI, and the DIY websites might not be the best route, but everyone makes their own decisions.  

I'll Sue

Nah, you won't. In the vast majority of cases, after the sabre rattling is done, nothing happens. In those rare situations where there is a legitimate issue, sure, bring in the legal eagles. But as any quality litigator will tell you, the bar to proving wilful malice is high - and expensive. Lawyers require retainers, in my experience routinely several thousand dollars up front before they begin their work. And what's the ultimate goal? Again, if the attorney deems the situation valid, a lawsuit may be warranted.

In the meantime, the best way to avoid issues is communication and a well written contract. Verify things ahead of time, then at the walk through. If something is amiss, let the agents figure it out. Set the drama aside, is a deal blown up over a missing mirror? Might it be better to work something out and close, isn't that the best outcome for both parties? Going to the mat and not closing could open up new issues - like loss of earnest money and breach of contract. But hey, maybe "the internet", AI, and the social media agent network has better answers! Treat this process like the significant event that it is.

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• contracts (15)
• disclosures (6)
• sellers disclosure (2)
• buyer beware (1)