11/03/08: Does That Refrigerator Convey?

Housing Counsel

By Benny L. Kass

Q: We purchased a home a couple of months ago and just moved into it last week. Because we are from out of town, our realtor did the final walk-through the day before closing. She found everything to be in order. When we moved in, the refrigerator/freezer was missing from the kitchen. The Multiple Listing (MLS) sheet stated that it was included in the purchase price. Our realtor discussed this with the seller’s realtor who said it was not part of the purchase because we never stated in writing (on the legal contract) that we wanted it to stay. We didn’t know that, since it was on the MLS. Our realtor said she has never encountered this issue in the past. I must add that we did not request the oven, microwave, or dishwasher either, but they did convey.

During our realtor’s walk-through the day before closing, the refrigerator was still there even though all furniture and personal items had already been moved. Do we have any legal avenues? We had to quickly purchase a new refrigerator/freezer although we feel we already purchased the original one. We think we were scammed.

A: I am not sure that you were legally wronged.

You should carefully review the sales contract that you signed. Does it incorporate by reference the MLS? That would mean that all promises contained in the MLS document become a part of your contract.

On the other hand, if the MLS is not made a part of the contract, you may not have a case against your seller. The standard contract used in the Washington metropolitan area contains the following language:

This Contract, unless amended in writing, contains the final and entire agreement of the parties and the parties will not be bound by any terms , conditions, oral statements, warranties or representations not herein contained.

The standard contract also has a paragraph entitled “Personal Property and Fixtures”, which list a number of items – including refrigerator – which are to be checked off to confirm that they will convey with the property. If your contact does not have the refrigerator box checked, the seller is not legally obligated to leave it in the house.

A fixture is something that is physically attached to the property – such as a chandelier or a built-in wall cabinet. A refrigerator is not a fixture. While the custom in this area is that refrigerators convey with the property, in California, for example, they do not.

But custom is not law. While it would appear that your seller took advantage of you, especially by taking the fridge out at the last moment, if your contact is silent as to its status, you may be out of luck.

You certainly can retain a lawyer to review your situation, but the legal fee will probably be the same – if not more – than you paid for the new refrigerator.

You should also discuss the situation with your real estate agent. If your sales contract contains the paragraph which lists what personal property is to convey, ask why the refrigerator was not checked off. It may have been an oversight on the part of your agent, but that oversight has cost you money, and perhaps your agent will share some of that expense with you.

Here are some suggestions for the next time you buy a house.

First, buyers are entitled to a pre-settlement walk through. This should take place the morning of settlement, and not the day before. It should be done during daylight hours, so that the entire house can be carefully inspected. And while I appreciate that you were not available to personally make the inspection, that was your problem. It is your house, and you personally should have conducted the inspection.

Second, all blanks in a real estate sales contract must be filled in, even if you merely write in “Not Applicable” (N/A). The paragraph that lists the personal property and fixtures has a box to be checked of “yes” or “no”, and each and every box must be checked off.

Third, if the seller makes certain representations to you, make sure they are reflected in your sales contract. If you cannot find space in the contract document itself, use an addendum that incorporates those verbal statements. And make sure that you incorporate by reference the MLS document into your sales contract.

Finally, you should have inspected the house immediately after you went to closing. By waiting a couple of months, you lost any leverage you may have had with your seller.

We are currently in a tight economy. Sellers who are facing a loss on the value of their home may have no sympathy for their buyer, and unscrupulous sellers will want to strip the house of everything they can get away with. This is especially true when the house is being foreclosed upon.

Over the years, legislation has been enacted by State and local governments designed to protect the consumer. But despite these laws, buying a house is still Caveat Emptor – let the buyer beware.