Listing Personal Property in Contract

QUESTION: We are having a disagreement in our firm over MLS reports and personal property. I’ve always thought that any personal property listed in an MLS report  automatically becomes part of the contract between the seller and the buyer. Another agent here says I’m wrong, but the way I see it is if the MLS report says, “bar stools  stay,” then the seller has to leave the bar stools, no matter what. Who’s right?

ANSWER: I hope you didn’t wager anything on this. The MLS is a mechanism for MLS Participants to make offers of cooperation and compensation to other MLS  Participants. As you know, buyers and sellers are not MLS Participants. While “bar stools included” on an MLS report is an indication to MLS Participants that the seller is  willing to deal as far as the bar stools go, any personal property included in the sale must be spelled out in the Offer To Purchase And Contract (form 2-T). The point is,  personal property listed in an MLS report does not automatically become part of the contract between the buyer and the seller. In fact, the Guidelines for completing the Offer  to Purchase and Contract (form 2G) specifically state: “PERSONAL PROPERTY: List all items of personal property that are to be included in the sale. (EXAMPLES: Curtains, draperies, etc.; free standing appliances such as a refrigerator or range; fireplace tools; window air conditioner; etc.) It is advisable to list any item included in the sale about  which some dispute may arise.” Agents would do well to heed that last sentence and list any item included in the sale about which some dispute may arise. Think of it this  way– if it’s not listed in the Contract as personal property included in the purchase price and it’s not a fixture, then it’s walking out the door with the sellers. If personal  property is listed as “included” in the MLS report, be sure it’s also listed in the contract between the buyer and the seller.

QUESTION: I make a point of putting the following in offers under the “Personal Property” paragraph:: “all items remain as per MLS.” This is so much simpler than having to  list each item, don’t you think?

ANSWER: No. You are asking for trouble. “All items remain as per MLS” is not the equivalent of listing all items of personal property included in the sale; the Guidelines make it clear that the personal property to be included in the sale should be detailed in the “Personal Property” blank. A general statement like “all items remain as per MLS” is  indefinite at best. Say you pull an MLS report for your buyer client on August 4th. The MLS report says, “all curtains remain.” On August 8th, the buyer decides she wants to  see the property. She loves the house and asks you to prepare an offer. You put “all items remain as per MLS” in the “Personal Property” blank. The listing agent calls you  later that day to tell you that the seller has signed the offer and you have yourself a deal. The only problem, unbeknownst to you, is that on August 7th, the MLS published a  change to the listing which said, “only curtains in master bedroom remain.” A few weeks later, your client closes and moves into the house. Is your phone going to ring?  Listing agents are not immune, either. It is not outside the realm of possibility that the listing agent and the seller will cross wires and as a result, the listing agent will include  in the MLS report an item of personal property that the seller has no idea is even in the MLS report as “remaining.” Your seller walks out the door with it. Then what do you do with “all items remain as per MLS”? Why invite such confusion? While you might think that “all items remain as per MLS” makes things simpler, the simple truth is that you are really making it harder on yourself. Spell out the personal property for the buyers and the sellers in the Contract, lest you end up in the market for some nice, new curtains,  paid for out of your hard-earned commission.