As a REALTOR®, the question of Does it Stay or Does it Go comes up with every transaction. The technical terms; fixture or chattel, are how they are described. As a buyer or a seller, it is important to know what is really included in the sale. I’ve asked my law student Ghost Writer, B. Sacamano, to help answer this question and the following is his article. B’s experience includes being a REALTOR® so the fixture chattel debate is discussed in an understandable way.
Have you ever bought a used car? What was included in your purchase? Were the tires included? How about the seats? Of course they were, they are after all, part of what makes it a car. The half used container of engine oil in the trunk was probably removed prior to the sale. As was the emergency road side assistance kit, and any other personal belongings not essential to the operation of the car in its capacity as a drivable car. The fuzzy dice hanging from the rear view mirror for example, the atlas in the glove box (younger readers feel free to google what that is), and the stack of cd’s under the front seat, all disappeared prior to you driving away in your new ride.
I’m hoping that this analogy will provide a bit of clarity regarding what’s included, and not included in a house sale. At the very least it should get you thinking so you can ask the right questions at the appropriate time of the sale. All too often the REALTOR® gets a frantic call after possession day regarding something that has been taken or switched out for something different. And the best way to deal with this issue is to prevent it from happening in the first place. This pre-emptive attitude will require knowledge of fixture’s and chattels.
Chattels can simply be described as personal property, and would not be included in any sale unless specified in writing. From our car analogy, this would be the half-used oil in the trunk, the atlas and the fuzzy dice. Conversely, a fixture is attached to the land (or home) in some way, and as such would by default be included in the sale. From our car analogy, this would include the tires and the seats. They are essential to what makes the car a car.
This seems simple enough, if it’s attached it stays, and if it’s not it goes, right? Not quite. Confusion arises when chattels become fixtures, either intentionally or unintentionally. You see, there is a legal principle that says whatever is attached to the soil becomes part of it. In other words, if an item of personal property is attached in some fashion to the land or the house, it will become a fixture and henceforth transfer ownership with the land.
This is of course the difficulty in answering the fixture or chattel question. The seller may have never intended an item of personal property to become a fixture in the first place, whereas the buyer may have assumed the item is included as it appears to be a fixture. Unfortunately the courts have decided the issue both ways; they have on one hand said that the physical attachment of a chattel is enough to indicate that chattel is actually a fixture, [1] and they have also conversely said physical attachment is not enough.[2] Essentially it comes down to the particular set of circumstances.
So what’s the simple solution here? Basically, if you want the container of oil, or the fuzzy dice, make sure to ask for them. Don’t assume they are included in the deal just because they were in the car when you looked at it. And likewise, if you’re going to put the original wheels back on the car before possession, make sure to stipulate that at the outset. When in doubt, you have to write it out.
[1] Holland v Hodgson (1872) LR 7 CP 328
[2] Monical –v- 0793545 BC Limited, 2013 BCSE 25
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