If you have bought or sold a house, you know that the Agreement of Purchase and Sale has two sections where you list the “Chattels Included” and “Fixtures Excluded”.
A lot of people ask: What the heck does that mean?
This goes back to the ancient law of property. There are two types of property: real property and personal property. “Real” property is land. Personal property is everything else.
As my property professor used to say, “Whatever is affixed to the land is part of the land.” “Fixtures” are items of personal property that have been attached to the land, and therefore are now deemed to be part of the land.
Chattels are items of personal property that are not attached to the land.
A definition of a “fixture” in Black’s Law Dictionary goes like this: “A thing is deemed to be affixed to real property when it is attached to it by roots, imbedded in it, permanently resting on it, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws.”
What does that mean in practice?
If you hang a mirror on a wall hanger, it is a chattel. If you screw or glue the mirror to the wall, it is a fixture. A built-in dishwasher is a fixture. (“Built-in” is a pretty good clue that whatever is “built-in” is a fixture).
When you buy real property, that is, when you sign an agreement of purchase and sale, you are buying the land. There is a presumption that the fixtures are all included and the chattels are all excluded. For that reason, if there are any fixtures that the vendor wants to take with them, they will have to specifically exclude them from the agreement.
Likewise, if there are any chattels that the buyer wants left behind, they will have to be specifically included.
Sometimes we see agreements which show “broadloom where laid” or “garage door opener” as an included chattel. Wrong. I’d say that the carpet is pretty well attached to the floor, so it is a fixture. I’ve yet to see a garage door opener that was not bolted to the building in at least six places. Fixture. I think my favourite is that virtually every agreement lists as included chattels “all ELFs”, meaning “all electric light FIXTURES”. ‘Nuff said!
Similarly, we see “washer and dryer” as excluded fixtures. They are merely appliances plugged in and are chattels. They don’t need to be excluded as fixtures but, rather, included as chattels.
I think it is appropriate in certain cases to list something as excluded or included, just to be sure that there is no confusion, even though it is technically unnecessary. You may have valances over the windows that appear to be attached, yet they are only hanging on a hook. I would recommend that a buyer list them as an included chattel if they want them.
So, next time you go out and buy a house, make sure that you list the chattels that you want included and make sure that the vendors don’t take any fixtures that they didn’t exclude. Do give some thought as to whether the item is actually a chattel or a fixture.
One tip I have heard that I like: if you see a fixture that you particularly like when viewing the house, make sure that you take a picture of that fixture to ensure that the same fixture is there when you take possession.
