Permanent attachment

DEAR BOB: I am selling my home. The buyers requested I include the washer, dryer and refrigerator, to which I agreed. They made no mention of my freestanding (not built-in) antique stove, so I assumed I was free to remove it.

Now my real estate agent (he is representing both buyer and seller) tells me I cannot remove the stove. He says the stove, even one not built-in or otherwise attached, is unlike a refrigerator, washer or dryer and is considered part of the real estate. Who is right? -- Michael L.

DEAR MICHAEL: You are correct. Your real estate agent is wrong. There is no law or even any custom that makes a freestanding stove a "fixture," which is part of the real property.

I suspect your dual agent is just trying to keep his buyers happy. If they wanted the stove included in the sale price, they should have itemized it on the purchase offer, as they did with the refrigerator, washer and dryer, which are personal property.

The law of fixtures determines if personal property has become real property by means of permanent attachment to the structure. Clearly, the refrigerator, washer and dryer remained personal property because they were not permanently attached to your home, other than by a plug and perhaps an exhaust vent. They could easily be removed without damage to the house.

I'll presume the freestanding antique stove is connected to the structure only by a gas connection and an exhaust flue, which can be easily disconnected without damage. However, if the stove is bolted or otherwise permanently attached to the structure, then the stove was converted from personal property into a "fixture" that is part of the real estate sale.

Home offer is not a 'free look'

DEAR BOB: I am a first-time home buyer. The house I want to buy has everything I want. I plan to make a purchase offer this week. Will I be obligated to buy after seeing the professional inspection report? -- Shawn W.

DEAR SHAWN: Your home purchase offer should contain a contingency clause for your approval of a professional inspection report. Be sure to accompany the inspector to discuss any defects discovered.

If the report shows no undisclosed defects, then you are obligated to complete the home purchase as agreed in the written contract. In other words, making a purchase offer is not a "free look" unless you include a contingency clause, such as your reasonable approval of the inspection report.

Another frequently used purchase offer contingency is for a mortgage lender's appraisal for at least the amount of the purchase offer. If the house doesn't appraise for the offered price, then you can cancel and get your earnest money deposit refunded, provided your offer included an appraisal contingency clause. For more details, please consult a local real estate attorney.

Send questions to Robert Bruss, 251 Park Road, Burlingame, CA 94010 or www.bobbruss.com.

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