Why Should Appurtenance Matter to Homebuyers?

You guys are the first to know, besides my Realtor, that I’m on the hunt for a new house. I know, the lady that gives mortgage advice every week is actually going through the process herself — again. Volunteering for this adventure has made me realize something: there’s a lot more to buying a house than just looking around and kicking the tires.



I was in the business for 9 1/2 years, as you probably know by now, so there are things that I forget are really confusing for first time homebuyers. Concepts like easements and right of ways and seller concessions can be really frustrating, leading buyers to believe they have, in some way, gotten the short end of the stick. While I’ve been looking, an even bigger point of contention occurred to me when my husband hoped out loud that a seller would leave a particular light fixture. That concept is appurtenance.

Cruising through Realtor.com, you probably aren’t thinking about what stays and what goes with houses you’re viewing. Like me, you’re probably just glad to see so many options in your price range. Still, when you find that house of your dreams, I want you to be ready. I want you to understand how this works, because the one thing you’re really banking on staying with the house might not, or vise versa, so let’s get that out of the way.

What is Appurtenance?

This is a concept that’s heavily debated in real estate circles across the country. In a broad, simple sense, appurtenance is a concept referring to the items that are physically attached to and/or “belong” to a house. Things that would naturally be appurtenant are items like wall coverings, doors, flooring, windows, and so forth. When you go beyond the natural structure of the home, though, it starts to get difficult.

Most Realtors use a working definition of appurtenance that includes a clause. An appurtenant item, to them, is anything that cannot be removed without causing significant cosmetic or structural damage to the property. So, not only can it not be removed easily, but it can’t be removed without damaging the property! AH HA! But hold on, who gets to define what “significant damage” means? We’re talking about a bunch of folks who make their living pushing boundaries… we’ve got to get a lot more specific.

The jury is still out on who decides how much damage is acceptable, at least not to my knowledge. I think in practice it varies from market to market. This is why it’s so important for you to have a home inspection and then a walk-through very close to closing. These are the most powerful ways to prove an item you believed to be attached was removed and left behind a big, ugly scar.

What Sort of Things are Appurtenant?

Technically, anything attached to the property and intended to be permanent is appurtenant. That means that a garage is appurtenant, but a carport might not be. The same goes for fencing, satellite dishes, appliances and even built-ins. Years worth of hours have been spent debating this subject in real estate law, but suffice it to say that attachment method and intention matter a great deal.

There are two main categories of appurtenance: fixtures and emblements. Fixtures are what we’re going to mostly focus on in this article, but I do want to touch on emblements for you gardeners out there.

FixturesEmblements
Ceiling FansTomato plants
Drop-In StovesCorn plants
CountertopsLettuces
BathtubsAnnual onions
Wall to wall carpetingSunflowers (if harvested for seeds)
Outdoor faucetsGarlic plants
Fireplace mantles (if attached)Basil plants
Window blinds (if installed and not reserved)Broccoli plants
Cabinetry (if installed)Strands of grain (if meant for harvest)

Emblements

Emblements first. Basically, these are crops — but they could be your little backyard garden. If you’re shopping during the growing season and the house you fell in love with has a neat little garden with lots of produce, don’t get too attached. Those vegetables aren’t yours if you buy the place — they belong to the seller.

This goes back to the days when a lot more people were farmers and relied on the land to sustain them. If they sold all or part of their farm before harvest time, they still needed to get in, tend the crop and harvest it. That crop was theirs and not only did they have the right to harvest it, but to tend it. They couldn’t reseed, but as long as the seeds they were growing were doing gang busters, the seller couldn’t touch that part of the land.

I bring it up because we’re going into summer and some poorly planning schmucks like my husband and I might have put out a garden without thinking about the possibility that this was actually the year they’d move. In that case, remember, hands off the tomatoes! It’s a good idea to ask at closing if they’ll be continuing to harvest said garden just for clarification.

Too many sellers have tried to use the emblements clause to remove their favorite landscaping plants prior to closing. The good news is that they can’t actually do that legally, but the bad news is that it may be very hard to force them to replant that azalea. You’ll have to sue for a bush, and that’s just a mess.

Fixtures

Fixtures are the main type of appurtenances home buyers worry about, which is why they’re mainly what I’ve been discussing so far in this piece. A fixture is something that would normally be considered personal property, but is now somehow attached to real property (a house, the land, a commercial building, etc.). In most cases, to be appurtenant, an item must meet the following qualifications:

It must have been intended to be permanent. That is to say, whoever installed the item meant it to stay right there forever. Things like cabinets, banisters and decks easily fall under this heading.

It must be attached using a permanent method. Even if the seller had hoped to permanently install an item, but decided to tack it up temporarily until they had time to install it properly, it might not be appurtenant. Since it’s not attached to the house by much (think things like book cases that can appear to be built-in but might just be sitting in a hole in the wall), they can take that thing away with them when they sell.

It must be easy to remove without causing damage. I always think back to the satellite dish example my teacher used in my real estate class when we get to this clause. In his scenario, the sellers and buyers were bickering over a satellite dish that was attached to a chimney. The seller had taken it down, but the buyers were mad because they assumed it would be included in the sale. At first, this is all the information he gave us to determine the appurtenance of the item.

After we had all guessed, he added some details. What if the dish was attached by big masonry screws? Sounds like it was intended to be permanent and might have caused damage when it was removed. How about if it was strapped up there by plastic straps? Neither permanent, nor likely to cause damage.

What about metal straps? Oh…. there’s the rub. That could be considered a permanent installation, but removing it would lead to minimal damage. However, the installation method had likely already damaged the surface of the bricks and might cause more minor abrasion in removal, making them more susceptible to breakage. Since the damage is probably going to be minor, this one could require a jury to decide.

Today when I see a house with a satellite dish, I just walk away. I don’t want any part of that.

Homeownership (source: xkcd)

The Bottom Line: Pay Attention to What’s Attached Before You Make an Offer

Once you’re at the closing table, there’s no turning back. You have the right to stand up and walk away, sure, but you’ve already got your moving truck, you’ve changed your address, six of your best friends are waiting to help you pack and unpack… you’re basically hung. So, if you get to closing and decide to throw a fit about a stove that wasn’t included on the listing but you just assumed would be included in the sale, you’re outta luck, Bub.

So, before you so much as make an offer, check the house out, look at those things you really want your next home to keep attached and READ THE LISTING. If it makes no mention of that two car carport and it’s not attached to the house securely, don’t assume it comes with the place. Just take it as a nice bonus if you get there on moving day and you happen to have a free carport.

The same goes if you’re selling, though. Don’t assume you can take anything you want — remember, if it’s attached, it has to stay attached. I’ve had clients take out light fixtures and you know what happened? Yep. Lawyer city. Turns out that hardwired into the electrical is considered a permanent installation. Who would have thought?

At the end of the day, if you pay close attention to what you’re buying or what you’re selling, and you do it with a reasonable mind set, you’ll skirt most of this appurtenance business. The problem with real estate is that it’s so emotional.

You might be really attached to that ficus in your yard, but it might not actually be yours anymore — always check with your agent if you’re not sure what stays with the house and what goes. Trust me, they’ve had to read volumes on the subject (or they’re new to the business, in which case you should find someone else to help you out).



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