Sunday, April 03, 2011

Removing Antiques upon Sale of a Home: Chattels v. Fixtures

When Richard Foltz and Wendy Loper sold their house in Pointe – Claire, Quebec, they unhinged and took with them an antique door that they had received as a gift. But the door was not stipulated as an exclusion in the agreement of purchase and sale. So when the purchasers, Kimberly Kyle and Jacqueline Jensen took possession of the home and found the door missing, they sued. They had other reasons to take Mr. Foltz and Ms. Loper to court, but in the proceeding they included a claim for the antique door that they believed was part of the sale and included in the purchase price.

The 2010 Court of Quebec case of Kyle c. Foltz raises the issue of what you can remove from your house upon its sale, in the way of antiques and collectibles, and what must legally remain on the premises. While it’s up to your real estate agent to prepare the agreement to protect you, sometimes realtors are simply not sensitive to this important issue. Unless otherwise specified in an agreement of purchase and sale, a vendor can remove all chattels from the property or home, but fixtures must remain.

For antique collectors there are important ramifications, particularly when, for example, your garden landscaping includes an old iron plough, or when you’ve installed a vintage stained glass window with pine frame, hung a Victorian crystal chandelier, or yes, affixed a nice old oak door.

Curiously, this past year there were a number of Canadian real estate law cases which dealt with the issue of the difference between chattels and fixtures. The leading case cited by courts across the country is a 1902 decision of the Ontario Court of Appeal. In the 2010 Supreme Court of British Columbia case of CMIC Mortgage Investment Corp. v. Rodriguez, Mr. Justice Rogers summarized the law from the Ontario case, and other more recent cases, as follows:

From these authorities I take the law to be that a thing affixed to the real estate will be presumed to be a fixture unless the evidence shows it is affixed for the purpose of making better use of it as a chattel as opposed to being an integrated part of the property as a whole; and that a thing that is not fixed to real estate will be presumed to be a chattel unless the evidence shows that its presence on the property is intended to make it an integral part or an enhancement of the property as a whole.

We can break down this somewhat convoluted legal principle by reference to our Quebec case and another recent B.C. case, Manarin v. Stelmaschuk, Doucettle Realty Ltd. and Leckie. In the Quebec case, the hinged antique door was clearly “an integrated part of the property” and not attached “for the purpose of making better use of it.”

In the Manarin case, Mr. Manarin purchased a home from Mr. Stelmaschuk. He sued Mr. Stelmaschuk and the realty company and agent who represented Mr. Stelmaschuk. Mr. Manarin claimed that the defendants misrepresented the square footage of the property, and that Mr. Stelmaschuk removed a number of “fixtures” from the home between when Mr. Manarin saw the home, and when he took possession after the sale. Mr. Stelmaschuk allegedly exchanged some of the items with others of lesser value. The list included a greenhouse and utility shed, wall mounted sconces and mirrors, and numerous other items; some the judge wasn’t convinced had been removed, others he couldn’t value for lack of evidence, and others he decided upon and valued.

Recall that the judge in the CIMC Mortgage case used the words “will be presumed.” This means that a party can still argue one way or the other, by rebutting the presumption. In the Manarin Judge M.J. Brecknell wrote that determining whether an item is a chattel or fixture “is not always as clear as may initially be thought.”

The judge found that the greenhouse and utility shed were chattels, stating that they were not annexed to the land, and citing evidence of how easily portable they were. However, other cases have looked at the weight of an item, so that an outer building could be intended to be a fixture, yet not attached to the ground simply because its weight makes it unnecessary.

The judge decided that the wall mounted sconces were chattels. It appeared that some had been hanging on screws and could be easily taken down without removing the screws (as apparently had been the case). The mirrors were determined to be fixtures “because their attachment to the wall was for the better use of room as a room, and not the better use of the mirror as a mirror.”

How would a judge make a decision regarding our vintage stained glass window with pine frame? Let’s assume that an ordinary window has been removed from a living room, and the stained glass unit inserted in its place, with silicone, and that the stained glass is what the purchaser saw before agreeing to buy the house. The window would be presumed to be a fixture. What evidence would have to be adduced to convince the judge that it was “affixed for the purpose of making better use of it as a chattel as opposed to being an integrated part of the property as a whole?” Would it be enough to tell the judge that it was installed where the old window had been, purely to make the best use of it, with the daylight and sunshine accentuating its beauty?

In the Manarin case, the buyer and seller did use a standard real estate association contract with pre-printed provisions and space for hand-written insertions, including an area for specific inclusions and exclusions. It was not completed with sufficient particularity.

Vendors should go through their home with their real estate agent, compiling a list of everything they want to take with them, that could possibly be construed as a fixture, and ensure that each item is enumerated as excluded. Purchasers should do the same thing for any item that could possibly be deemed a chattel, and have each listed as an inclusion. Real estate agents don’t always know what’s important to their vendors and purchasers. If they don’t ask, tell them.

- Alvin Starkman, Oaxaca, Mexico

When Alvin Starkman sold his Toronto home, the purchaser insisted he remove the big old iron plough which had been incorporated into the front garden shrubbery. Alvin refused, and won that battle. Alvin and his wife Arlene now live in Oaxaca, Mexico, and own Casa Machaya Oaxaca Bed & Breakfast (http://www.oaxacadream.com). Alvin is also a partner in Oaxaca Culinary Tours (http://www.oaxacaculinarytours.com), providing custom designed small group gastronomic tours of Oaxaca.

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