April 6th, 2012 at 6:54 pm
On first look it was seem that paragraph 8 of the Purchase Agreement deals with most of these issues. After all, that clause specifically says that “lighting fixtures,” “window coverings” and “tv brackets attached to the walls” are included in the deal. Unfortunately, in our cases the sellers claimed that those clauses don’t actually mean what they seem to mean. In the first, the seller stated that they bought and installed the crystal chandeliers in the home and therefore they were not “fixtures” as the term is used in the RPA. In the second, the seller stated that since there were shades on the windows behind the drapes, those shades were the “window coverings” and the drapes were not. And, finally, in the third the seller took the position that because the bracket had to be custom built for his television, it could not be used by the buyer and did not need to be left.
Regardless of whether you agree with the seller’s positions (which I don’t), the bottom line is when the buyer moved into each house, that item was gone and the seller was not going to give it back. So, with that reality in mind, what should you do to protect yourself from this problem? Obviously, the best thing to do is not to rely on the language of the RPA. As you know, and can see above, any language can be interpreted in multiple ways. So, rather than relying on that language, ask the seller a question – Do you want to take anything from the house at close of escrow? By dealing with the issue up front, everyone knows what the deal is and there is no disappointment or surprise at close of escrow. As we have said many times, problems arise when something happens that your client doesn’t expect. So manage your client’s expectations and ask the question. That way you buyer won’t be surprised when escrow closes and won’t reach in to your commission for compensation.
As always, please contact us with any questions you may have.
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