In this situation we will assume an Agreement of Purchase and Sale which is silent on the point. The Seller had a “picture wall” in the front hall. It ran along the wall with the curved staircase and ascended to the second storey. There must have been a hundred pictures! Naturally, the pictures are all chattels and personal items of the Seller.
Here’s the problem: they have to be removed prior to closing!
- If the picture hooks stay, there are 100 of them,
- If the picture hooks are taken, there are 100 holes in the wall.
Do we reasonably expect the Seller to patch and paint? It wasn’t a term or condition in the Agreement of Purchase and Sale. The Agreement was silent on this.
The Buyer, of course, saw how many pictures were on the wall when they saw the home prior to the Offer, when they inspected the home, and when they visited the home prior to closing.
It’s easy for some to believe that the Seller has no responsibility and that the Buyer took the property “as is”.
The same rules apply in Landlord and Tenant situations.
Is this damage? Does it have to be repaired? Is the damage simply too small to be worth pursuing? That’s usually the case with one of two pictures. Sometimes the room needs a fresh coat of paint anyways. And, can you pursue it if you want?
Consider the situation of a commercial landlord sitting with a $10,000 security and damage deposit and a wall that is going to cost $1,000 to repair. Do you give back the full $10,000, or might you consider deducting something? In fact, this is precisely the reason for the deposit in the first place. The same legal rules apply in both situations.
Most commercial tenancies require restoration to the original condition. With a damage security deposit, this is easy to enforce. This type of deposit is illegal under the Residential Tenancies Act.
The Purchaser buys “as is”. There are pictures, picture hooks and no damage. The pictures are chattels and the picture hooks take their characterization from the pictures. They are chattels too!
If the hooks are removed, then the Seller has just caused damage to the premises. If the Seller removes the pictures and leaves the picture hooks, no damage has occurred. At this point, the picture hooks, formerly chattels have now become fixtures. However, you will appreciate that is also a change of condition since the Offer date. Is that appropriate before closing? If they were simply chattels, then the Seller would have to remove them. They only became fixtures after the Agreement was struck and before closing. The change in characterization itself possibly obligates the Seller. The risk of damage is with the Seller during this time period.
Nevertheless, whether they be chattels or fixtures, there’s no physical damage if they are left behind.
The damage results from the removal.
That is a reasonable argument, followed by the concept that the Seller has an obligation to remove the 100 hooks while they are chattels thereby causing damage to the premises.
The damage results from their presence.
The front hall has several two storey walls. A professional painter is required: 1) there is a special faux paint that needs to be matched, and 2) scaffolding is necessary, step ladders won’t do. The repair will cost $3,000.00 to address since the area is so large.
One of the prime features to the house was the $5,000.00 faux paint treatment in the front hall, the main level halls, the staircase, and the second level halls.
So, picture hooks:
- Removed leaving holes, the Buyer has a remedy,
- Left behind, no physical damage,
- Left behind, subject to the obligation to remove chattels, prior to their annexation to the real estate during the “ at risk closing period”
There is case law to support 1 and 2; but no case law yet for 3. Why not consider being the first!
Picture hooks: not that SIMPLE!
Brian Madigan LL.B., Broker