Buying Property - What is Included?
Most people intuitively know what is and what is not included in the sale of land (real property). This article will attempt to expand upon that knowledge, setting out some basic legal principles to help us determine what is included and what is excluded in a sale of real property. Often what is included and what is excluded in a real estate transaction comes down to whether the property in question is a chattel or a fixture.
Chattels have been described as personal property that is moveable, that is neither permanently attached to the land nor any building that is attached to the land. Think of items that are not bolted or fastened to a house in any way (for example, a table and chairs, a bedroom set or a fridge). Fixtures on the other hand are property attached to land. Note, most houses are attached to the land, and therefore, any item attached to a house is also attached to the land. A chattel that becomes sufficiently attached to the land may become a fixture, and in turn, become part of the land itself. When you sell real property (land), anything considered by law as being part of the land (fixtures) is presumed to be included in the sale.
What happens when it is not clear as to whether something is a chattel or a fixture? Ideally, it would be addressed in the offer to purchase. If it is not addressed, and it is unclear, the courts have (often through costly litigation for the parties) developed factors that help them determine if an item is a chattel or a fixture.
Why is it important to differentiate between Chattels and Fixtures? Often in agreement, as is the case with the standard Manitoba realtor’s offer, and many in-house agreements prepared by lawyers, fixtures are included in the sale of real property as a matter of right, whereas chattels are excluded. If you wish to exclude fixtures from a sale, the parties must agree, otherwise, any fixtures on the property will be included in the sale of the land. Conversely, if a party wishes to include a chattel in the sale, this should be included in the agreement otherwise the vendor may retain the property. Should you have any concerns about what is being included and what is being excluded, please ensure you address these concerns with your lawyer or realtor.
DISCLAIMER: The information provided within this article is for general information purposes only and is not intended to be a substitute for legal and other professional advice. Legal and other professional advice is recommended. While every effort is made to ensure that the information provided is current and accurate, all persons involved in the preparation of this article disclaim any warranty as to the accuracy, currency, or absoluteness of the information. The author shall not be responsible nor liable for decisions resulting from, or related to, the information or opinions within the article.