The Pitfalls of Personal Property (Part II): Avoid This Costly Trap When Buying or Selling a Home in Pickens County, GA

NOTE: I am not an attorney, and this is personal opinion based on my real estate experiences over the years, not legal advice. For specific questions, concerns, or contractual guidance, please consult with legal counsel.

My previous post identified personal property as an area of real estate transactions that can lead to disagreement (and unpleasantness), between buyers, sellers and their respective brokers, up to -- and beyond closing -- and is therefore an area requiring particular attention.

Experience has shown that there are certain gray areas as to what constitutes personal property and what doesn't in the sale of a home. Buyer expectations that the above-ground swimming pool, hot tub, garden arbor, projection screen, or gorgeous plantation shutters were to remain with the house lead to surprise and exasperation when occupying the home and finding them gone.

Sellers on the other hand face claims that the flat screen TV above the fireplace was "attached" and therefore real property, not personal, and should have been left behind, or that the electric generator is an integral part of the home and should never have been removed.

So which is it? Short of a lengthy (and expensive) court battle, it can be hard to tell. There are some conventions, but they are constantly shifting and can vary between jurisdictions. Some buyers moving to Georgia are often surprised to learn that while the stove / oven / dishwasher are invariably included in the sale, the refrigerator usually isn't . . . even if it is the matching piece to the other appliances. Sometimes the microwave is included, sometimes not.

So, how to get around this?

1. Investigate.
2. Negotiate.
3. Document.
4. Record.
5. Double-check.

As a buyer, observe everything. If you have a question about whether something stays or goes, or if there is something in particular you want, ask. Ask your agent or the seller, and make a note of what was said. Jot down all you see or want before making an offer.

In Georgia, a Seller's Property Disclosure will include a lengthy list of items that remain with the property (everything from door hardware and outlet covers, to shelving systems and ceiling fans). Read through the list carefully, and again, ask about items not included or left unchecked if they are important to you. If not checked, you are going to face a tough battle arguing they were supposed to stay, fixture or not!

I have seen disclosures in which items like phone jacks and light fixtures were not checked as "staying". Often this is just an error, but why rely on an incomplete document, when a simple question can settle it?

When it comes time to write an offer, be sure to include anything in writing that you are asking for, have discussed with the seller / their agent, or for which there is need for clarification. Ensure that items are fully and accurately described, so that there can be no mistake or confusion. Leave nothing to rest upon any "verbal agreement", unless you really aren't that concerned about it and are willing to take your chances on not getting it.

If the seller is to leave the oven, does that include the racks and broiler pan? Do the floor lamps include the lampshades? Does the king size master bed that is to stay include the box springs and mattress? Be thorough and put it in writing! Itemize all personal property on a separate bill of sale as an exhibit or addendum to the agreement.

If there is an item of particular value included in the sale (TV's, digital projector, boat, etc.), which could be readily switched out for a lesser model, you may even consider recording the specific make, model, year and if available, even the serial number, to ensure there is no "accidental" switch prior to close. Yes, it can happen.

With the seller's permission, take pictures and / or video of the interior and exterior of the property, particularly if you are including furnishings and artwork in the sale. This will provide a visual record if any dispute arises. Total recall is difficult in a home you may have visited only a couple of times and it becomes your word against somebody else's.

Finally, once you have identified what you want and / or expect to get with the home beyond the structure itself, have made it clear to the seller what those expectations are, and have thoroughly documented them, go back and check! The closer to the actual closing date and time you do a final walk-through the better.

On more than one occasion I have seen light fixtures "traded out" prior to closing, despite a disclosure saying all light fixtures were to remain and with no other agreement to the contrary. I have seen a built-in instant hot water heater at the kitchen sink replaced with a cheap soap dispenser. A propane tank drained of all fuel. A newer washer & dryer set switched out for an older set.

Rose bushes and other flowering shrubs seem to be another favorite last minute change of heart by sellers, who, often for sentimental reasons, just to decide no one will notice or care if these are gone. Wrong. Buyers do notice. And they do care. Sometimes just as a matter of principal as much as anything. Other times the item was significant to them as well.

And it's not necessarily a dishonest or spiteful intent by these sellers, or a reflection on what "type" of people they are. And not all sellers do it. Some leave even more than was agreed upon, rather than move it. Homes are just usually a big part of our lives, filled with memories and years of love and labor. It is often only as that big "closing day" approaches that we suddenly realize how big of a change it truly is in our lives and try to salvage a part of it.

So, if that rose bush or antique chandelier is important you as a buyer, go ahead and put it in writing. And then go back and check that it is still there.

Much of this is equally true for a seller. When placing your home on the market, examine everything. Anticipate that as part of the negotiations, a buyer may ask for anything they see, not just your home, so try not to be offended, and be prepared as to how you will respond. Requests can range from including artwork and window treatments, to electronics and personal decorative items, as part of the sale. Decide what you are willing to part with.

Document thoroughly in the seller's disclosure what is definitely included (stove, shelving, fences, irrigation system, etc.), and give your agent a list of what you would be willing to consider subject to a suitable offer (furniture, tools, etc.), but also go ahead and identify in the disclosure items you are absolutely not including in the sale if there is question as to whether it might be considered a fixture or you just aren't willing to part with it (attached gas grill, custom built bookcase, ball and claw bathtub, etc.). The more clarity provided to all parties up front, the smoother negotiations are likely to go.

Review any offer carefully to ensure you understand all you are being asked to give up, and don't be scared to counteroffer, identifying those items not included in the sale, just to keep everything clear.

Create your own photographic / video record of the interior and exterior of the home -- you may need to defend yourself against a claim that something was there that no longer is, or vice versa. (A less frequent issue in transactions, but still a possibility.)

Basically, as with so much in life, open communication throughout a real estate transaction is fundamental and vital. When buying or selling a home, aside from avoiding some awkward moments, some very expensive mistakes can be easily side-stepped by approaching the transaction in a thorough and systematic fashion . . . and by ensuring that all parties are on the same page from day one.

Get it in writing!