Interesting question! Actually, they do fall close to the gray area. The answer is: sometimes “yes” and sometimes “no”.
First, we have to figure out whether or not they are fixtures or chattels.
Second, were they intended to be included? Have a look at the Listing for the property.
Third, was there any reference contained in any promotional material to the effect that they were included?
Fourth, were they mentioned in the Agreement of Purchase and Sale?
Fixtures or Chattels
Have a look at the series of rules that relate to the determination. No, don’t say anything about:
- Tools, and
- Turning the house upside down.
Both of those concepts are “made up” by real estate agents. Judges don’t talk that way.
Fixtures are part of the real estate. Chattels are personal property. You must apply an objective intention test here. That means, what was the intention of the person who placed the item on the property: chattel or fixture? You don’t ask the actual person. If you did that, then that would be a subjective test. This is “objective” only. So, the question is: “what would an ordinary person in the shoes of the person who placed this item on the property, have in all probability intended?
The answer is either:
- It is placed there temporarily, with the later intention that it be removed, or
- It’s there, for once and for all, permanently, no one is coming back to take it.
If the mirrors are fixtures, they stay. If they are chattels, they may be removed.
Mirrors as Chattels
Let’s move around the house somewhat, including halls, living rooms and dining rooms. Now, imagine a very large, expensive mirror, with a baroque frame which matches the furniture in the room. This mirror is attached to the wall with two picture frame hooks and picture frame wire. These hooks and the wire can be purchased from a hardware store for under two dollars. The mirror itself is worth just over $2,000.00.
If nothing is mentioned that it was sold with the property, what do you think about its ownership?
Bob bought it. Bob installed it. Does Bob get to take it with him? In most cases, the average person would conclude that if they were in Bob’s shoes, they would not have intended to attach THIS PARTICULAR mirror to the wall and make it part of the house forever. This mirror is a chattel.
Mirrors as Fixtures
Bill is a builder and has just constructed a 3,200 sf custom home which includes 3 bathrooms plus an ensuite in the master bedroom. Two bathrooms include vanities. The mirrors are placed on the outside door of the vanity. These vanities come as a unit and the each cost $129.00.
The next bathroom is located on the main floor. It is a wall mounted large mirror affixed by clamps in each corner. There is a screw which holds the clamp and consequently the corner of the mirror in place. This mirror is worth $19.00 and the clamps are $2.49.
The next location is the ensuite. Two mirrors this time. Separate frames attached to the wall with picture wire and picture hooks. These mirrors are $29.00 each.
The house is a relatively large custom built home which took about 7 months to construct at a cost of slightly over one million dollars.
Most people would say, that Bill intended all of these mirrors to go with the house. They were not expensive. They completed the four bathrooms. Mirrors are expected with most bathrooms. In fact, they are almost like “bathroom fixtures”. The vanities were clearly attached and extremely difficult to remove.
Who wants to take two mirrors from the ensuite? They are not rare, They are not expensive! As a pair they are $52.00 attached to the wall and “in place”. Technically, they could be removed without doing any damage to the wall or the bathroom. But, damage is not the test. Objective intention is the test. What do you think a Trial Judge will think that someone like Bill would have intended? Would he really want to move them along to his next custom home?
Assuming that we have a $2,500.00 bathroom mirror, maybe that’s a “keeper”. No one wants to give that away or part with it, simply for the sake of hanging it in a bathroom.
Now, also consider a similar mirror, except for the fact that this time the frame is plastic, and it costs $14.99 at the hardware store. No one cares about it. It stays. It’s part of the house. Once attached, it stays there forever until someone replaces it.
On occasion a listing may refer to the item as being included. If that were the case, then there might be a claim against the Listing Agent.
There might also be some promotional material like a brochure or flyer. Again, this might give rise to liability on the part of the Listing agent.
Agreement of Purchase and Sale
This is the document which governs the deal made between the Seller and the Buyer.
- If it’s identified as included, then it stays,
- If it’s identified as excluded, then it goes,
- If it’s not mentioned and it’s a fixture, it stays,
- If it’s not mentioned and it’s a chattel, it goes.
The contract here governs. It would be very rare for a Seller to make a representation about the mirror that would enable the Buyer to sue. After all, the “entire agreement clause” contained in the Agreement specifically excludes verbal representations and statements. However, it is possible for a Seller to make such a comment, after the Agreement, but prior to the expiration of the conditions to make such a statement. A claim here would be based in tort law not contract law.
A similar issue arises with respect to the Listing agent. There is no contract. There is no entire agreement clause, but possibly there might be a false representation. So, here, the claim arising about the Listing or the Brochure is in tort law against the Listing agent and not the Seller.
Question: Are the bathroom mirrors included?
Answer: Depends! Each case is different.
Brian Madigan LL.B., Broker