Question:
No reference was made to the TV mount in the Agreement of Purchase and Sale. The Seller is unsure whether to leave it or take it with them. They don’t want to have to repair the damage if they take it. But, are they supposed to take it?
Answer:
Interesting circumstances, sometimes a chattel and sometimes a fixture. You have to know which one of the 15 Rules that apply. The TV is a chattel. The bracket takes its identity from the TV. Just like a picture hook takes its identity from the picture. That makes the TV bracket and the picture hook both “chattels”. On occasion the TV or the picture will be removed. That makes the bracket and the hook “fixtures”, because they cannot take their identity from anything.
Now, that you can determine its identity, you need to see what was said in the Agreement. Normally, the Seller gets to take the TV, but without the Buyer’s permission cannot leave the bracket. Without permission, the Seller has to remove the bracket and repair the damage.
There is a limited exception, and that would be that the Buyer had removed the TV prior the APS being signed.
Note: the picture hook example was provided years ago by Bora Laskin.
Brian Madigan LL.B., Broker