Personal vs. 'Real' property

It is with some frequency that buyers of a property feel entitled to a seller's personal property after the contract is signed. Things like firewood, a rusty junk pile, the vegetables in the garden and sometimes even pets become a point of contention when approaching the agreed upon date of the sale if buyer and seller are not aware of the obligations within their contract.

A rule of thumb we Realtors have often operated with is; "If it is attached, it is real property and a part of the sale." Our real estate forms, vetted by the Idaho State Associ-ation of Realtors and their attorneys are updated each year to clarify differences that often occur between buyers and sellers. With regard to included property, paragraph 5 of the contract states; "All existing fittings that are attached to the property are INCLUDED IN THE PURCHASE PRICE (unless excluded below), and shall be transferred free of liens. These include, but are not limited to, all seller-owned attached floor coverings, attached television antennae, satellite dish, attached plumbing, bathroom and lighting fixtures, window screens, screen doors, storm doors, storm windows, window coverings, garage door opener(s) and transmitter(s), exterior trees, plants or shrubbery, water heating apparatus and fixtures, attached fireplace equipment, awnings, ventilating, cooling and heating systems, all ranges, ovens, built-in dishwashers, fuel tanks and irrigation fixtures and equipment, that are now on or used in connection with the PROPERTY and shall be included in the sale unless otherwise provided herein. BUYER should satisfy himself/herself that the condition of the included items is acceptable."

If a buyer desires to keep personal property not listed in paragraph 5 it should be itemized in 5(A) "ADDITIONAL ITEMS SPECIFICALLY INCLUDED IN THIS SALE:"

Likewise, if a seller wants to keep any of the aforementioned items, including those decorator curtains they have only discovered after an exhaustive search, they need to be excluded in writing in 5(B) "ITEMS SPECIFICALLY EXCLUDED IN THIS SALE:" This is where the seller will indicate that the window coverings, satellite dish or other "attached" items will NOT be a part of the sale.

It should be obvious, if only due to the capitalized and bold text provided in these forms, that conflicts can only be avoided by paying close attention to the form itself. Yet, time and time again, buyers and sellers do not understand what is and is not to be included in the sale because the language so painstakingly crafted by the association is not pointed out to them by their agent and they (buyer or seller) have not read what they are signing.

Often, we negotiate the inclusion or exclusion of personal property as a part of a contract. A full price offer may elicit cooperation from a seller for things like the pile of firewood, where a low price offer will lead to a lack of cooperation to include it, but may lead to a negotiated sale outside the real estate contract. Sometimes, a seller will feel compelled to dispose of personal items not specifically requested like the rusty junk pile referred to, perhaps selling it for scrap, rather than leaving an eyesore for the buyer. A buyer then may become visibly upset upon taking possession of the property and finding that the scrap they had wanted for a yard art project is no longer available to facilitate that plan.

These and many other issues will easily be avoided when agents, buyers and sellers communicate clearly and read carefully the terms of our various forms and contracts. The secret to avoiding conflict is understanding before agreeing.

Trust an expert...call a Realtor. Call your Realtor or visit www.cdarealtors.com to search properties on the Multiple Listing Service or to find a Realtor member who will represent your best interests.

Kim Cooper is a real estate broker and the spokesman for the Coeur d'Alene Association of Realtors. Kim and the association invite your feedback and input for this column. You may contact them by writing to the Coeur d'Alene Association of Realtors, 409 W. Neider, Coeur d'Alene, ID 83815 or by calling (208) 667-0664.