Legal Question in Real Estate Law in California

Re: Buyer claims that ''items included in sale'' weren't delivered

This claim is something to take seriously. That is not to say you are likely to lose, but you could lose.

The first step is to involve the real estate professionals (broker, agent, escrow officers) who assisted in preparing the paperwork. They owe you a problem-free transaction.

Whether something in a sold property is a fixture that should stay or personal property that may be removed is a question of fact, and courts will look at what it is, how it was or is installed, the history of the parties' negotiations, and of course any written evidence showing the parties' intent.

If there is a list of items that go with the property, if anything is excluded from the list, courts will tend to assume the omission is significant and rule that the item doesn't go with the real estate. Conversely, if there is a list of items that are personal property, the failure to list something is likely to be deemed intentional and that the item is a fixture.

Get assistance from your agent, that's why you paid the big commission. You did use an agent, didn't you?

Otherwise, you may want to try negotiating with the buyer; you could avoid the hassle of a suit and/or strike a bargain that's cheaper for you than hiring professionals to re-install these items. Or, you may be able to convince the buyer that her/his demand is unreasonable, and you'll thus avoid the whole mess.

Re: Buyer claims that ''items included in sale'' weren't delivered

The terms of the contract prevail over common law in situations such as this. Normally, fixture that become an intregal part of the structure must be sold with. If an item is personal property, it does not have to be sold with the home.

Re: Buyer claims that ''items included in sale'' weren't delivered

Based on what you have said here, you will lose. If you had a $5000 chandelier hanging over you dining room table when you sold the house, and before you moved, you took it down and replaced it with a $50 one, it would not be what the buyer had bought.

Anything that is attached or installed is included in the sale unless specifically excluded in the contract. You could have had signs posted during the presentation of the home, such as "shower head does not stay." What you should have done (for future reference) would have been to remove the items that you planned to take, and replaced them with something before puting the home on the market.

Your Realtor should have asked you questions regarding this, and given you some guidance prior to the sale.

Re: Buyer claims that ''items included in sale'' weren't delivered

what was there and installed is part of the sale unless stated otherwise.

Joel Selik

Broker/TrialAttorney

800-894-2889

http://www.sandiegorealestateattorney.com/