September 24th, 2018 at 8:08 am
I am the listing agent. The home has decorative curtain panels that frame the windows, but they do not cover the windows. The buyer’s agent says the seller must leave them behind. Yet, you can just lift these curtain panels off their rods, like a painting that rests on a nail. Can my seller remove these decorative curtain panels?
Answer: Yes, most likely. Under the Residential Purchase Agreement (RPA), the seller would be required to leave the curtain panels if they fell within any of the following categories:
- Fixtures: Fixtures are included in the sale under paragraph 8B(1) of the RPA. They are generally defined as items of personal property attached to the land in such a manner as to be considered part of the real property. Courts determine whether something is a fixture on a case-by-case basis, by considering factors such as the intent of the annexor, the method of annexation, and the difficulty in removing the item. In this situation, it’s unlikely that a court would consider these particular curtain panels to be fixtures, given that they simply lift off their rods.
- Window coverings: A “window covering” is one of the enumerated items included in the sale under paragraph 8B(2) of the RPA. Although the RPA does not specifically define a window covering, the plain meaning of this term would be something that covers the window. Yet in our situation, the curtain panels merely frame the windows. They do not cover the windows.
- Identified items: Rather than trying to figure out if something is a fixture or otherwise included in a sale, a buyer can simply identify in paragraph 8B(3) of the RPA whatever items the buyer wants included. In this situation, nothing was inserted in paragraph 8B(3). You may want to mention to the buyer’s agent that, if his or her client wanted the curtain panels, it was incumbent on the buyer’s agent to include them in paragraph 8B(3).
-Thank you to Nancy Hamilton (Montecito South Office) for suggesting this week’s legal tip.
Copyright© 2018 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of September 24, 2018. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.
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