There is an old song written by George and Ira Gershwin called “Let’s Call the Whole Thing Off.” This song was made famous by Ginger Rogers and Fred Astaire in the 1937 film “Shall We Dance.” You are probably familiar with the lyrics as the song has been covered countless times by artists including Ella Fitzgerald and Louis Armstrong, Harry Connick Jr. and Willie Nelson. 

“….You like potato and I like potahto.
You like tomato and I like tomahto.
Potato, potahto, tomato, tomahto – 
Let’s call the whole thing off…”

The duet continues in a similar fashion with Fred and Ginger each pointing out their differing pronunciations for various words and concluding that, due to their differences, they should just “call the whole thing off.” 

What does any of this have to do with fixtures and personal property disputes? There are some items in a real estate transaction the buyer might think of as fixtures (potato) and the seller thinks they are personal property (potahto), and because they cannot agree, they start sounding like Fred and Ginger and declare, “let’s call the whole thing off.” Ideally, careful drafting by the licensees involved will avoid these disagreements about interpretation and not leave the parties wanting to call the whole thing off. 

The WB-11 Residential Offer to Purchase provides a definition of fixture at lines 26-36. If “fixture” is a defined term, why are there so many disputes related to whether items are fixtures to be included or personal property that the seller can remove? The definition of fixture does identify some items as fixtures such as water softeners, garden bulbs, plants, and blinds and shutters, but that list is not exhaustive. What about the basketball hoop or the hot tub? What about the play structure or a large outdoor sculpture? What about the deer stand? 

After reviewing the definition of fixture from the WB-11 Residential Offer to Purchase, you can see that basketball hoop, hot tub, deer stand, sculpture and many other items are not listed there. So, what are they — personal property or fixtures? 

The definition of fixture gives some additional guidelines on determining whether something is a fixture or personal property. Is the item physically attached to or so closely associated with land, buildings or improvements so as to be treated as part of the real estate? Then it is probably a fixture. 
Is the item physically attached and not easily removable without damage to the premises? Then it is probably a fixture. Is the item specifically adapted to the premises? Then it is probably a fixture. Is the item customarily treated as a fixture? Then it is probably a fixture. 

Let’s consider a hot tub. Is it physically attached to or so closely associated with land, buildings or improvements so as to be treated as part of the real estate? Maybe. The hot tub might be attached to pipes or tubes that are attached to the building, but the hot tub itself might not be attached to the building. Is the hot tub physically attached and not easily removable without damage to the premises? Maybe. A hot tub can be built into a deck or perhaps just sitting on a deck. The answer to this question will depend on this specific hot tub. Is the hot tub specifically adapted to the premises? Maybe. If it is not a custom-built hot tub but rather a generic model right off the showroom floor, it is probably not specifically adapted to the premises. Is the item customarily treated as a fixture? Based on the number of WRA Legal Hotline inquiries about whether a hot tub is or is not a fixture, I think we can conclude it is not customarily treated as a fixture. Rather, determining a hot tub’s status as a fixture or personal property will require a case-by-case analysis. 

The first step will be to look to the offer to purchase to see if it was addressed. If the buyer included the hot tub as an item to be included in the purchase price, the problem is solved and the hot tub is included, and neither the parties nor the agents have to engage in the analysis to determine if the hot tub is a fixture that should stay or personal property to be removed. Another solution to this problem would be to again look to the offer to purchase to see if the hot tub is listed as an item not included in the purchase price. If so, the problem is solved without having to engage in the fixture or personal property analysis. 

What if the hot tub was not addressed in the offer to purchase at all? The parties can look to the definition of fixture in the offer, but as mentioned earlier, the factors laid out in the offer are not necessarily conclusive. If the buyer and seller do not agree as to whether an item is a fixture or personal property, they could ask a judge to decide. The courts have attempted to lay down certain tests to determine when an article takes on the character of a fixture. 
• Is the article physically attached? Is it easily removable without damage to the premises? If it cannot be removed without serious damage either to the item or premises, it is practically conclusive that it is a fixture. 
• Is there a special adaptation between the article and 
the premises? 
• What is the intent of the person attaching the article to the premises? Are there general community customs?

None of these tests are conclusive on their own, nor do they operate mechanically. 

Going to court to solve this problem requires a great deal of time and money. The agents involved in the transaction have the ultimate, foolproof solution to this and every potential fixture or personal property dispute. The solution is to draft offers carefully and to document in detail what the parties want to have happen and not rely on court-created tests and characteristics laid out in the definition of fixture to address these items. 

Is a licensee drafting an offer for a buyer with a hot tub? The licensee can ask the buyer whether the buyer wants the hot tub and either write it into the offer as included if the buyer wants it or write it into the offer as not included if the buyer does not want it. Hot tub problem solved. The same is true for all those other items that could go either way depending on the item and the property. The basketball hoops, sculptures, play structures and yes, even the deer stand, depending on its construction, are all solvable problems by simply drafting the offer to specify whether the item is included or not included in the purchase price. 

Let’s take this discussion a bit further by considering another way to reduce potential disputes about what items are included or not included in the sale. A buyer’s offer specified that the purchase price includes “washer and dryer.” The seller accepts this offer and intends to leave a washer and dryer behind in the property, but they are going to take the washer and dryer currently in the property with them to their new home and replace them with the washer and dryer from the home they are buying. Can they do this? Arguably, yes. The buyer said the purchase price includes a washer and a dryer, which they will have. The buyer did not specify the buyer wanted the washer and dryer as seen in the property on the date of the buyer’s showing. Is the buyer going to be excited to move into the property and find a different washer and dryer in the home? Probably not. 

What would happen if the buyer sued the seller claiming that the seller swapping out one washer and dryer set for another was somehow a breach of contract? Courts generally construe ambiguous terms against the party who drafted the contract. If a buyer sued about the swapped washer and dryer, the court would look to the contract and say, “You wanted a washer and a dryer. The seller provided you a washer and a dryer. Case closed. If you wanted a specific washer and dryer, Buyer, you had the opportunity to specify that in your contract and you did not.” To avoid this situation, a buyer could specify in the buyer’s offer that the purchase price includes “washer and dryer in the laundry room as seen on” the date of the buyer’s showing or some other identifying date to avoid any questions as to which washer and dryer the buyer wants included in the sale. 

Hopefully your buyers and sellers will not find themselves singing along with Fred and Ginger and deciding to call the whole thing off because they are of differing opinions as to whether something is a fixture (potato) to be included or an item of personal property (potahto) that the seller can remove. The best way to assist the parties is to use careful drafting and avoid disagreements that could lead them to declare, “Let’s call the whole thing off.”

“Fixture” defined in the WB-11 Residential Offer to Purchase

“Fixture” is defined as an item of property which is physically attached to or so closely associated with land, buildings or improvements so as to be treated as part of the real estate, including, without limitation, physically attached items not easily removable without damage to the premises, items specifically adapted to the premises and items customarily treated as fixtures, including, but not limited to, all: garden bulbs; plants; shrubs and trees; screen and storm doors and windows; electric lighting fixtures; window shades; curtain and traverse rods; blinds and shutters; central heating and cooling units and attached equipment; water heaters, water softeners and treatment systems; sump pumps; attached or fitted floor coverings; awnings; attached antennas and satellite dishes (but not the component parts); audio/visual wall mounting brackets (but not the audio/visual equipment); garage door openers and remote controls; installed security systems; central vacuum systems and accessories; in-ground sprinkler systems and component parts; built-in appliances; ceiling fans; fences; in-ground pet containment systems, including receiver components; storage buildings on permanent foundations and docks/piers on permanent foundations.