by Phoenix attorney Christopher A. Combs, partner with Combs Law Group, P.C.

Question:

The seller has four televisions in the home, including a flat screen TV attached by brackets to the wall. At the close of escrow the seller removes the flat screen TV from the brackets, and takes all four televisions. There were no discussions between the seller and the buyer about the flat screen TV, and nothing in the Contract specifically excluded or included the flat screen TV. The buyer is demanding that the seller replace the flat screen TV, stating that the flat screen TV is a fixture. The buyer refers to Line 36 of the Contract which states that ” attached TV/media antennas/satellite dishes” belong to the buyer; and that since the flat screen TV was attached with brackets to the wall, it is an ” attached TV,” and should have remained in the home at the close of escrow. The seller states that the flat screen TV was not ” attached” to the home and therefore is not a fixture. Was the seller entitled to take the flat screen TV at close of escrow?

Answer:

Probably. In determining whether or not an item is a fixture, the intent of the parties controls, even if the item is ” attached” to the property. See Lehmann v. Keller, 684 A.2d 618 (Pa. 1996). If the seller owns four televisions, including a flat screen TV, the intent of the parties is probably that the seller is entitled to all four televisions. The language ” attached TV/media antennas/satellite dishes” probably refers to attached TV antennas and media antennas, not attached televisions themselves. The old 2000 Contract, Lines 24-25, stated ” . . .attached TV antennas (excluding satellite dishes and operating equipment). . . .” The language of the current 2005 Contract appears to simply add to ” attached TV antennas” any ” media” antennas, and to include, not exclude, satellite dishes. Note: The seller and buyer should specifically address in the Contract who is entitled to the flat screen TV at closing.

The above is for informational purposes only and is not intended as definitive legal or tax advice. You should not act upon this information without seeking independent legal counsel. If you desire legal, tax or other professional advice, please contact your attorney, tax advisor or other professional consultant. Reprinted with permission. Copyright 2007, all rights reserved.