“Fixtures” Paragraph and Garage Door Openers

QUESTION:  I represent a buyer. Prior to submitting an offer on the Offer to Purchase and Contract (form 2-T), we wrote the words “NONE EXCEPTED” in the blank space in paragraph 2(e). When the seller returned the signed contract, he did not cross out any of the items listed in paragraph 2(b) or modify the words that we had added to paragraph 2(e). The transaction is scheduled to close next week. I called the listing agent to ask about the garage door openers. He told me that his client does not have the openers, and that he did not receive them from the previous owner when he purchased the home last fall. Under these circumstances, does the seller have an obligation to provide garage door openers to the buyer?

ANSWER:  We think not. The purpose of the fixtures paragraph is to provide a clear definition of what items will be considered fixtures for purposes of the Contract. Unless specifically excepted by the parties, all of the items listed in the paragraph will be considered fixtures, whether or not they meet the generally accepted legal definition of “fixtures”. Garage door openers are a perfect example. Because they are portable and not affixed to the real estate, they would not generally be considered fixtures. However, by virtue of the Contract language, garage door openers are considered fixtures for this transaction. That does not end the inquiry. Paragraph 2(b) provides that the items listed in paragraph 2(b), “if present on the Property on the date of the offer,” are included in the sale as part of the Purchase Price. This means that if an item on the list is not present, it is not included in the Purchase Price. In the facts presented, the seller never owned any garage door openers. Therefore, they were not included in the Purchase Price. If a buyer has any question about whether a particular item will be included, he should verify the existence of that item prior to submitting an offer.