When I sold my first condo back in 2009, I had no problem including all of my patio furniture in the sale, since I was moving to a new condo with an even bigger patio, and I had already purchased new furniture.

I had a rather basic glass patio dining table and six chairs which I really didn’t love, and I had purchased this awesome new cast-iron dining table for ten that was going to adorn the new terrace at my new condo, so I was happy to get rid of the old one.

I purchased a small “conversation set” from Home Depot to help stage the condo for the sale, so obviously I had no use for that at the new condo as well, considering I went-for-broke on a wicked eight-person lounge set that I would eventually put on the elevated deck on the new terrace.

When I sold the condo, the buyer’s agent asked, “Would you include the tables and chairs in the sale?”  I agreed, and so he wrote into the inclusions section, “All Patio Furniture.”

Now here’s where things get tricky.

Just as it was irresponsible for him to write, “All Patio Furniture,” you might argue that it was equally as irresponsible for me to accept an offer with this.

When the sale closed, I received a letter from the buyer’s lawyer (which any lawyer will tell you is worthless) that noted the “brown wicker bench” had been unlawfully removed.

Huh?

I didn’t own a “brown wicker bench.”

I owned a storage chest where I kept my tools.

Do you see where this is going?

I suppose there’s an argument to be made that if you put pillows on top of the storage chest and sat on it, then it would be a “bench.”

But it wasn’t actually a bench.  It was a storage unit and it was filled with tools when the buyer visited the condo.  Nobody ever sat on it.

Now, back then, I was still a bit of a shit.  I would do things just to entertain myself, like actually email the lawyer back, which I would never do today.

I CC’d the buyer agent and the buyer himself, and explained what constitutes a “bench” and what constitutes a “storage unit.”

Eventually, the lawyer wrote me back with his version of events, and noted, “If this item is not brought back to the property by 6:00pm on Sunday, September 30th, then we will commence legal action.”

This is sort of what I was angling toward.  I was entertained.  I wanted to know what the end game would be.

Not that this was an experiment of mine from the start or anything, but rather because I was so annoyed with the buyer (who also complained that the soap tray on the brand-new dishwasher was “faulty” and wanted a new dishwasher, in addition to other stupid things…), that I wanted to know how far he would take this, or at least threaten to.

Now, nobody goes to court over a $200 storage bin.  But the lawyers will always threaten to.

The point I’m making is this: once the sale closes, the buyer has zero leverage, right or wrong.

There’s an example of where the buyer was wrong, or at best, if you don’t like me, where there was a grey area.

But here’s an example of where the buyer is right, and it comes from a colleague of mine.

She recently sold a house and one of the items noted in the Agreement of Purchase & Sale was a fireplace.

Here’s the actual APS:

For those that haven’t bought or sold real estate before, here’s a screen-shot of the second page of the standard Agreement of Purchase & Sale:

What’s the difference between a chattel and a fixture?

We have a saying with respect to chattels: “Anything that isn’t nailed, screwed, or glued.”

It rhymes so it’s acceptable.

But in reality, a chattel is a moveable item and a fixture is, well, affixed.

It’s often a grey area, since the typical chattels included are “Fridge, Stove, Dishwasher, Microwave, Washer, Dryer,” and yet almost all of those are affixed in one way or another, like a fridge’s water line, a stove’s gas line, a microwave being bolted in place, etc.

In the context of real estate transactions, you would need to include any chattels, otherwise they are deemed to be excluded, and the opposite is true with fixtures, which would be included unless specifically excluded.  And that is why the APS notes “CHATTELS INCLUDED” as well as “FIXTURES EXCLUDED.”

For my colleague, whether the fireplace was affixed or not, didn’t matter.  She was smart and included it in the APS.

During her last buyer visit, she noted that the seller had removed it.

She sent him a note saying that it needed to be returned, and here’s their corresponding text message conversation…

This is pathetic and annoying for several reasons.

First, consider that this isn’t just a listing agent, but it’s actually the Broker of Record of a company too.

Notice how the agent first says, “It’s not attached or built in,” trying to claim that it’s a chattel and not a fixture?

Cheeky.

But my colleague is smarter, and included it in the APS.  Then she told the listing agent “It’s included in the APS and it was included in the MLS listing.”

Checkmate.

But the listing agent, who is clearly useless, says, “Send me the part to send to them,” asking my colleague to email the listing agent the screen shot of “CHATTELS INCLUDED” that I showed you above.

My colleague says she wants the fireplace back, or says that the same one is on Wayfair for $400.  Really, the buyers just want the damn thing that was in the Agreement.

Then, the listing agent starts negotiating.

“Brand new is $400.  I could pay half.”

Oh, screw off.

The listing agent then starts to say that the fireplace is old, presumably trying to negotiate, but eventually relents and says it will be returned…

…until she then offers $300 instead of $200!

Unreal.

Eventually, my colleague reiterates, “The fireplace or the $400 cost.”

It’s quite simple.

And yet the agent, who just said that the fireplace would be returned, asks for the email address and says that money will be e-transferred.

But when will that money be e-transferred?

After closing.

That’s a huge red flag.

Once this deal closes, there’s nothing the buyer can do, save for starting a legal action.

And I believe that is why the listing agent said, “I will transfer on Monday after closing.”

I wouldn’t trust that listing agent to send the money after closing.  In fact, I wouldn’t trust that listing agent not to kill me in my sleep either…

My colleague escalated this to her buyer’s lawyer, who is now sorting it out with the seller’s lawyer, and we hope that all will be resolved.

But will it?

There’s never any guarantee.

And that’s why it’s so important to do everything that needs to be done before closing, and not after.

I feel as though I’ve written something to this effect already in 2023, but I actually went back and looked at the posts and I don’t see anything!  Am I losing it? 🙂

This is happening more and more frequently when sales close and I don’t think it’s a matter of, “Well, everybody’s really busy out there,” as much as it’s a function of unprofessionalism on behalf of agents and/or greed and ignorance on behalf of the sellers.

Before a sale closes, the buyer has leverage.

The leverage is simply in the form of, “We haven’t closed…..yet.”

The seller wants the sale to close and often needs the sale to close, ie. if the seller has a bridge loan as he or she is in between properties.

So when a buyer notes that an item that was supposed to be included in the sale isn’t present, the seller is far more likely to return that item to the property, for fear the buyer won’t close, or will threaten not to close, or will close under protest, or will request a holdback of the sale proceeds, pending legal action, etc.

Earlier this year, I sold a really beautiful house in the east end to a nice family who certainly pulled out all the stops when they listed and sold their house, so they most certainly would have liked the seller of the home they purchased to do the same.

On our last buyer visit, we noticed that the seller had removed all the drapes from the property.

What?

Why?

First of all, quite simply, who does this?

Secondly, these were custom-made drapes for this house.  It’s not like they would fit any other windows in another home, unless you built a home around the measurements of these drapes.

But most importantly, they were included in the Agreement of Purchase & Sale.

“All Window Coverings & Hardware” is what is most commonly written, and “window coverings” encompasses blinds, drapes, curtains, sheers, or anything on site.

It’s very common for homes to have vertical blinds that move up-and-down with a pull-string, then horizontal drapes/curtains that you slide back-and-forth with your hands.

These were all included in the Agreement, and yet the seller removed them.

I feared that this was going to be an issue and I told my clients, “You need to talk to your lawyer!”

The problem on my end was that the listing agent didn’t have any pull with the seller.  He agreed with me that the window coverings should have been left by the seller, and he even agreed, somewhat under his breath, that his client was an asshole for taking them.  But he wasn’t going to be able to sway the seller to bring them back.

The bigger problem always occurs when the lawyer says, “It’s time to close this sale.”

Any real estate lawyer will tell you that you can’t refuse to close a purchase because of missing drapes, or a scratch on the kitchen floor, or a leaky downspout.  You can only object (at least in theory and with best practices…) to closing when there’s an issue with the title.

In reality, the law is all grey.  And in reality, he who pushes the hardest and bluffs the best, wins.

My clients closed on the purchase and, of course, the drapes weren’t on site.  Nor were they brought back the next day.

But here’s where the story has a happy ending.

My clients aren’t just “smart” as in intelligent.  They’re “street-smart” as well and they’re savvy.  They can also be like a dog with a bone sometimes, and when you add all that up, they’re the type of people that get things done.

They didn’t just tell their lawyer, “We want those drapes back,” but rather they went out and hired a company to come and provide a quote on brand-new, custom drapery throughout the house.

The quote came in at $25,000.

Then, the quote was sent to the seller’s lawyer with an accompanying request for full reimbursement.

And guess what?

The very next day, the seller personally came to the house to return the drapes.

We dodged a serious bullet there, and while I would like to say that it’s because I pressured the listing agent to pester the hell out of his seller-client, I know in my heart it’s because my clients outsmarted the seller.

But they shouldn’t have had to, right?

What use did the seller have for those drapes?

It doesn’t matter.

People do crazy things before and upon closing, and buyers are consistently being caught off guard.

Removing chattels or fixtures from the property that are supposed to be included in the sale is only half the story.  The other half is fulfilling the rest of the Agreement of Purchase & Sale, with respect to clauses in the Schedules.  But perhaps that’s a topic for another day, or, a blog post for another day.

For the buyers out there – just remember that as soon as the deal closes, you have zero leverage.  Anything that was supposed to be inside that property, and isn’t, is never coming back.

Except for drapes, apparently.

That’s one for the ages, I swear…