Question: Let’s say that a buyer and seller enter into a C.A.R. Residential Purchase Agreement (RPA). After close of escrow, the buyer discovers that the seller took away items that should have been left behind, including the drapes, blinds, and pool equipment. What should the buyer do? 

Answer: This is a difficult situation. Perhaps the only redeeming aspect of addressing this question is to have this opportunity to warn buyers’ agent that this type of thing can happen, and the legal solutions leave a lot to be desired.

To answer the question, if a seller takes away items that should have been left behind, the buyer can try to demand that the seller return those items or credit the buyer accordingly. But if the seller refuses, the buyer generally has no choice but to pursue the buyer’s claim against the seller through the legal process. Depending on the value or cost of the items taken, the buyer may be able to file a lawsuit against the seller in small claims court for claims up to $12,500.

As mentioned in last week’s Legal Tip, small claims court is a special court with special rules that may be inapplicable or inappropriate for certain situations. More information about small claims court is available at the Small Claims Court webpage. Instead of suing in small claims court, a buyer may, depending on certain considerations, pursue mediation, arbitration, and/or litigation in Superior Court. Buyers will usually hire their own attorney to pursue mediation, arbitration, and/or litigation in Superior Court.

Practice Tips for Agents: Given the difficulties when sellers fail to leave items behind, here are some practice tips for agents to consider:

1. Go Over Included/Excluded Items With Your Client: Whether you are the listing agent or buyer’s agent, carefully go over the included and excluded items with your client. Pay special attention to items in the property that are often in dispute, such as items that are expensive, heirlooms, vintage, custom-made, chandeliers, items that seem to have sentimental value, items hanging from a nail (like a bathroom mirror), items in the yard, etc.

2. Memorialize What Your Client Wants: You do not have to figure out whether something is a “fixture” that goes with the property, or otherwise listed as included or excluded in paragraph 9 of the RPA. Just list any item that your client wants included or excluded in paragraph 3P of the RPA or in a counter offer.

3. Go Over Included/Excluded Items Early in the Process: Clients are usually easier to deal with at the beginning of a sales transaction, rather than at the end. Disputes concerning included/excluded items may arise during escrow because the buyer and seller are upset at each other about other things that may have transpired. For example, at contract acceptance, a seller may be happy to leave behind certain things. But towards the close of escrow, the seller may refuse, because the seller is angry with the buyer for delays or other matters.

4. Maybe Do the Final Walk-Thru Right Before Close: A buyer generally has the right to do a final walk-thru up to 5 days before close of escrow (see paragraph 3J of the RPA). However, sometimes a buyer may want to wait until the last minute (e.g., after the seller’s movers are done), just to make sure that the seller has not taken certain things, and that the property is in substantially the same condition as on the date of acceptance. Of course, this strategy is not always possible, depending on the circumstances.

-Thank You again to Brenda Baney (Tustin Office) for suggesting this week’s legal tip!

Copyright© 2024 Shared Success Center, LLC (serving HomeServices of America companies). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of October 7, 2024. 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. Written by Stella Ling, Esq.