Fixture or Chattel? Does it Stay, or Does it Go?

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.

Fuzzy Dice

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

If you have any further questions, please contact us or feel free to leave a comment or a like and check out our Facebook and twitter feeds.

Home Buying Is a Process – What should you do next?

Do you have a plan?

The home buying process can be exciting and fun or it can be a time of stress and anxiety. This is greatly affected by what process or plan you have implemented. It will also depend on the type of Home Ownership you have decided to pursue.

Home Buying Process

There will be common factors like:

  1. Establishing your budget and Level of Risk Tolerance
  2. Getting Pre Approved
  3. Contact Your Real Estate Professional
  4. Determining Wants and Needs
  5. Review  of properties currently available
  6. Physical introduction to suitable properties.
  7. Educating yourself on neighbourhood and surrounding area.
  8. Shortlist Properties
  9. Make Conditional Offer on preferred Property
  10. Review of Documentation
  11. Arrange Inspection
  12. Remove Conditions
  13. Complete Purchase
  14. Move in.

Step 10 is pretty straight forward when buying a house because you will only be reviewing about 5 to 7 documents depending on the property. Purchasing a strata titled property (Condominium)  is much more complicated. You will need to ensure your plan includes a review of all Strata Documentation.  Your Real Estate Professional will be able to guide you through this part of the home buying process.

Home Buying Process – Documents To Review

  1. Title: What is registered against the title and how might it affect your property.  Restrictive Covenants or Easements, and Rights of way will remain on the title so know what they are for.
  2. Occupancy Permits: Has all work been completed and an occupancy permit provided.
  3. New Home Warranty: If the property is newer (less than 10 years old) it should have some New Home Warranty coverage.
  4. Developer Disclosure: If it is a new building or owned by someone who owns more than 5 units a Disclosure Statement may be available.
  5. Strata Property Disclosure Statement: The Owner will have completed this disclosure letting you know more details.
  6. Strata Plan: This one is key to understanding what it is you are actually buying.
  7. Bylaws: Even in the simplest of Strata’s there is a set of Bylaws. Strata’s can have restrictions as to Children, age, Pets, business etc. Know what they are before you buy.
  8. Strata Plan General Index: Bylaws, designations of Limited common property can change. These need to be registered in order to be valid.
  9. Form B (Information Certificate): The Strata Council will issue the form b and provide information on Parking, storage, contingency reserve, etc. It is important to compare this info to other info you receive. We once received documentation saying the parking was Common Property when the Strata Plan correctly identified the parking as Limited Common Property. There is a difference.
  10. Form F: Usually obtained to ensure payment of strata fees is up to date.
  11. Depreciation Reports: Became mandatory in BC on December 14 2013. Not all strata’s will have one since they are still able to waive the requirement by a 2/3 vote at a strata meeting. If one is available, this can be a very valuable document in your decision making process. These documents are typically long (40 pages) and include a broad range of information.
  12. Engineers Reports: If there are any, you want to have the opportunity to view them. They will cover structural and geological issues of a strata.
  13. Inspections: The Depreciation Report is a big inspection of the entire strata. An inspection will reveal any short comings of the Unit itself. These could be leaks under the sink, tub enclosures, electrical deficiencies etc.
  14. Minutes of Strata Meetings: Whether AGM’s, council or special meetings these documents are important. They will contain correspondence as well which can give an indication if anything odd is taking place.
  15. Legal Opinions: The form b will tell you if the Strata is involved in any lawsuits.
  16. Budget and Financial statements: Very important to know the financial strength of the strata.
  17. List of owners is sometimes available for review as well.

Making major decisions involves going through a process. The home buying process must have a strong plan to be successful. A strong process leads to wise decisions.

Strata Titled Properties and the Home buying Process is our specialty. A complicated transaction can benefit from an experienced guide. Knowing what red flags to look for could save you from grief later on. Please contact us  if you are needing help in locating the right property or if you are needing help with your review of your documents.

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Condominium – What does that really mean?

We often hear the word condominium shortened to condo. And for many it has become synonymous with Apartment style housing. In this post we will unpack what Condominium really means.

Commercial Condominium Project

Terminology in Real Estate can sometimes be a bit confusing so when selling or purchasing a property you need to understand what it is you are buying or selling. Condominium is defined as per the Oxford dictionaries as:

a building or complex of buildings containing a number of individually owned apartments or houses.

In British Columbia it also means any property that is part of a strata titled group of properties. This can include; Apartment style, Townhome’s, Duplex’s, Bare Land Strata’s, Commercial Properties and Mixed use Properties. You may not even know what category you are buying!
In British Columbia, these types of properties used to be governed by the Condominium Act.  This was replaced with the Strata Property Act and it is the governing authority. You will recall in my previous post  we discussed different types of ownership. It was mentioned that strata ownership represents approximately 50% of all ownership types. This will vary depending on community but it is significant to note that a strata (condominium) transaction is typically the most complicated type of transaction you might ever enter into.
Every Condominium is subject to the strata title act which outlines the responsibilities of the owner as well as the strata corporation. Now the term strata corporation itself needs some defining.
By default, the owners of the condominium are also joint owners of any common property (Assets) of the development. This joint ownership is what is called the strata corporation. The strata corporation is managed by a strata council which acts for the benefit of the owners as whole. It is a common practise for the strata corporation to hire a Property Management company to assist them in ensuring the corporation is run correctly.

Key Areas of Condominium Ownership:

  • ByLaws – Every Strata is governed by a set of bylaws. These bylaws are either established by the strata corporation or they are by default the bylaws specified within the Strata Property Act

A common error when buying bare land strata is not recognizing these still apply.

  • Strata Plan – The strata plan shows you what type of strata you are involved in and what you actually own.

the ad said your unit came with 2 parking stalls. Do you really own them?

  •  Engineers Reports & Depreciation Reports – These reports, if available, can be key to making a good decision on whether or not you should buy a particular unit. They are also valuable tools for the Owners in making good decisions on managing their assets.

Knowing when a major asset like a roof or heating system needs replacing is key in budgeting for a strata. Also important as a buyer to know if something major is upcoming and how it will be paid for.

  • Financial Statements – Gives you a clear picture of the Financial health of the development and where they are spending money.

A key thing to look for is whether or not the expenditures match the budget. If the maintenance budget is not being spent, are there going to be deferred maintenance issues?

  • Minutes of Strata Meetings – These minutes are the records of any Strata Council, Annual General Meetings and Special Meetings. As a buyer you will want to see a minimum of the previous 2 years on record.

Reviewing these documents will help give you a sense of the management of the strata corporation. Does the council overstep their level of authority? Do they deal with things in a timely manner? Are their changes to the bylaws moving forward? Special assessments?

This brief explanation of a condominium and what it means is only meant to alert you to some of the key areas to look at. As mentioned earlier, it is a complicated transaction and you are best advised to seek expert advice.

As a real estate professional I am qualified through education and experience to help you in one of two ways.

  1. Buying or Selling a Condominium: Able to help you navigate the entire process as your agent.
  2. Strata Property Review service; A comprehensive evaluation of the key areas identified above. As a Buyer this is important before you make your deal firm. (If we are acting on your behalf as in option 1, this service is included).

Please feel free to contact me at any time should you need any help. And please feel free to comment or share this post.