Seller is taking things from house that's under contract.

21 Replies

We are about to close on a SFR in about a week or so, and they are in the process of moving all of their things out of the property. Sometimes, I'll drive by to check on their progress from time to time.

Now, here is the problem, and I'm not sure how to approach this with her. But the other day, I drove by and noticed that the a/c condensing unit that sits outside the house is missing. I asked the owner if she knew what happened to it, and she said maybe someone had picked it up, thinking it was junk because it wasn't hooked up yet. It was on the concrete pad next to the house ready for install, HELLO!

Now, I discovered that the kitchen refrigerator and window a/c is now missing as well. The fridge, and the window a/c were both written in as part of the deal as well as some other items. but I didn't think I had to write in the condensing unit as part of the contract, just figured it would be implied.  

Do I have any recourse? I am not sure what I should do at this point, I have never had this happen before. My head is spinning, I could really use some help from the BP nation.

Thanks everyone!

Medium logo8107749 smjpegAl Mcbee, 26.2 Property Investments | [email protected] | 785‑709‑0308 | http://www.262propertyinvestments.com

Yes, you have recourse. Get your Realtor involved. Have your Realtor speak with her Realtor and find out what is going on. If they were written into the contract she needs to provide or replace them. If they were stolen, well, that's what insurance is for. As for the condenser, it would be considered a built in and you shouldn't have to write it in.

Yes, if listed personal property isn't there at settlement you don't have to close, they will need to put the personal property back or pay for replacement and often it's suggested to reduce the sale price, I'd say not if you're getting a loan and a lower price doesn't replace the items. The contract included the AC on premises when you contracted, they need to get another one! The lender won't go for that.

Now, we don't know who took it, doesn't matter, the owner has possession and has care, custody and control of the property until they and you close. Hope you didn't do possession prior to closing!

Let them know you are buying a house with AC and they need to ensure it's there by settlement. If they don't, see an attorney. Good luck :)

Medium logoscopiccroppedblue2Bill Gulley, General Real Estate Academy | https://generalrealestateacademy.com

Be sure to schedule a preclose walk thru and bring your camera.

Contact an attorney to find out what your legal options are.  I personally wouldn't want to close on the property if it was missing those items.  Check the contract to see which personal property is supposed to stay.  Get your realtor involved.  Let her know you do not want to sign anything at closing unless everything is intact, especially the condenser.  Do a walk-through of the property on the day of closing just an hour or two before you're scheduled to go in and sign.  Take the camera as Bob Bowling suggested for future proof.  If your attorney approves, do NOT sign anything if any items are missing.  Your realtor will likely want to contact the listing agent to discuss what is happening and how to fix the problem.  

Disclaimer:  I am not an attorney and I do not represent my opinions as legal advice.  I am simply stating personal opinions based on past personal experiences.

If those items aren't replaced you will be under no obligation to close.  The air conditioning system is a fixture and is not personal property.  It's attached so there's no need for it to be written into the contract.  They can't remove that just like they can't remove the doors and windows.  The appliances are personal property so that's why you include those on the contract if they are part of the deal. 

I'd advise the seller that all of the items need to be replaced or the contract will have to be renegotiated.

Not giving legal advice but, barring a written agreement, it depends on whether the item is considered a fixture or chattel. 

A fixture is an item that is attached to the property with the intent to enhance the value of the property and the removal of which would damage the value of the property. Certainly a central hvac unit would be a fixture. But refrigerators, washers/dryers, and window AC units are a little more hinky because those are rarely permanently attached to the property.

Regardless of all that, I assume your state has a section in the sales contract which lists chattel property that the seller will leave behind. If the missing items are listed in this section, you probably are able to cancel the contract.

If it were me, I would probably cancel the contract anyway. Who knows what else they are taking when you're not looking.

Originally posted by @Al Mcbee :
I hope this isn't a sign of some sort.

There's a cheesy 80's movie staring Richard Pryor you should watch called Moving.  They look at the house with the seller, a nice elderly couple, and everything they point out something they like the couple jokingly says "We're taking it with us."  When they close on the house they find everything has been removed, including the windows, doors, and inground pool.  

Al,

Wow a buyer's nightmare. Call your Realtor asap tell them what's going on and have your Realtor contact the seller's Realtor and share the information. I am a broker in another state and our laws may differ but what you purchased should be in the purchase contract, if those things are not there, you don't close until they are there. We do a final walk through on the day prior to closing, I take a camera, the contract and the inspection report. 

Thank you everyone for the comments, I called the homeowner and she said she would try to find the condenser and would return the fridge. I told her I hope she finds the compressor bc I would hate for her to have to go through the insurance. From the reaction I got from her, she didn't say it but, I am now thinking she canceled her insurance.

This house was a very good deal at the start, now as the close is nearing it's becoming a pain in my neck.

Medium logo8107749 smjpegAl Mcbee, 26.2 Property Investments | [email protected] | 785‑709‑0308 | http://www.262propertyinvestments.com

I bought a house for our PHA, the seller came back after closing and striped the aluminum siding himself! He was the County Recorder of Deeds! Since we were going to demolish it, I didn't say anything, but I almost did. He saw me and scampered off, still theft, but he was in his 80s then, acted like he didn't have two nickels to rub together.

In RE, you'll meet all kinds! Good luck on your settlement. :)

Medium logoscopiccroppedblue2Bill Gulley, General Real Estate Academy | https://generalrealestateacademy.com

All the more reason to make your contract rock solid. Each state has it's own laws regarding what constitutes real property so you should study your State's laws closely  and contract accordingly.  

Guy Gimenez, Buying Texas Today | [email protected] | (512) 270‑7279 | http://www.BuyingTexasToday.com

Originally posted by @Guy Gimenez :

All the more reason to make your contract rock solid. Each state has it's own laws regarding what constitutes real property so you should study your State's laws closely  and contract accordingly.  

 How much more rock solid could it have been when the contract states that the window unit a/c stays, all the kitchen appliances stay, as well as the washer and dryer. I know that those needed to be in the contract, I shouldn't have to include the condensing unit because it's part of the house.

Medium logo8107749 smjpegAl Mcbee, 26.2 Property Investments | [email protected] | 785‑709‑0308 | http://www.262propertyinvestments.com

@Al Mcbee  

My comments were a meant as a general statement and not specific to your deal since you didn't post your contract and that in itself makes it difficult to determine the quality of said contract.  Regarding the condensing unit, it's also reasonable to assume that since it was not connected to the property, it was mere personal property.  I can all but assure you it would be considered chattel in Texas under these exact circumstances.  While you're certain the condensing unit conveys, someone clearly felt otherwise.  

I hope things work out but personally, I would use this as a learning lesson.   

Guy Gimenez, Buying Texas Today | [email protected] | (512) 270‑7279 | http://www.BuyingTexasToday.com

Originally posted by @Jay Hinrichs :

@Al Mcbee 

 owe I have seen this one many times... you just have to duke it out.

 I'm shining up the gloves now. 

Jay, I posted in the pro area,  I'd appreciate if you would take a look. I'd like your opinion on what I wrote.

Medium logo8107749 smjpegAl Mcbee, 26.2 Property Investments | [email protected] | 785‑709‑0308 | http://www.262propertyinvestments.com

Originally posted by @Guy Gimenez :

@Al Mcbee 

My comments were a meant as a general statement and not specific to your deal since you didn't post your contract and that in itself makes it difficult to determine the quality of said contract.  Regarding the condensing unit, it's also reasonable to assume that since it was not connected to the property, it was mere personal property.  I can all but assure you it would be considered chattel in Texas under these exact circumstances.  While you're certain the condensing unit conveys, someone clearly felt otherwise.  

I hope things work out but personally, I would use this as a learning lesson.   

 I hope so too. Thanks. 

Guy if you get a minute, I would like your input as to what I wrote in the pro area.

Thanks

Medium logo8107749 smjpegAl Mcbee, 26.2 Property Investments | [email protected] | 785‑709‑0308 | http://www.262propertyinvestments.com

@Al Mcbee  

@James Wise  

Will do but James I think has given you the answers. I at one point in my career and this is long ago.. but I sold the most expensive SFR to sell in the county I lived in... My buyer from SF Bay area they were cool.. the sellers were old folks and really probably should have died in this 5 acres lakefront estate.. But they sold.. so next thing we know they are taking everything out just like you describe.. down to the molly bolts in the lath and plaster.. it was a nightmare.. but I got it done.. and this was 1979... 24 YO broker and pocket 22k commish Man did I think I had the world by the tail LOL

Medium ksqoekox 400x400Jay Hinrichs, TurnKey-Reviews.com | Podcast Guest on Show #222

@James Wise

** Per Al, it was not connected.   

Originally posted by @Al Mcbee :

"I asked the owner if she knew what happened to it, and she said maybe someone had picked it up, thinking it was junk because it wasn't hooked up yet. It was on the concrete pad next to the house ready for install..."

Al, I'll check the Pro area and respond.

Guy Gimenez, Buying Texas Today | [email protected] | (512) 270‑7279 | http://www.BuyingTexasToday.com

@Al Mcbee  

First off, I do not know if in Kansas that a Seller's Disclosure form is required as it is in many states ?  If so, it would state what does and does not convey ?

Was the property in MLS and listed by an agent ? If so, it would state whether the property offered central air/heat

If it was listed by an agent, have your agent contact the other agent and get it corrected. 

Again. no info as to whether a loan was involved ?  If so, the appraiser and your mortgage company would be REAL interested to know that it does not have central air if the condenser being on a pad was relied on as central air

If any of these items are in play, I would assume that your remedy is to force the owner to make the items reappear or postpone closing until they do !

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