What should I do if a seller removes a generator before Closing?

QUESTION: On a final walkthrough yesterday, I noticed that the seller removed the generator from the property and just left the wires hanging without even capping them off! My buyer is very upset, and we are supposed to close tomorrow. What should my client do? We wrote the contract on the Offer to Purchase and Contract (Form 2-T).

ANSWER: Your buyer will have to decide whether to proceed with Closing or make the seller cure the breach.

Form 2-T has two categories of fixtures. The first category is in paragraph 2(a), which states that all existing fixtures are included in the sale unless excluded in paragraphs 2(d) or 2(e). The term “fixture” is controlled by state law, which uses the Total Circumstances Test to determine whether an attachment is a fixture or not. The Guidelines for Completing the Offer to Purchase and Contract (Form 2G) explain how the Total Circumstances Test may be applied.

The second category of fixtures is in paragraph 2(b), which contains bulleted items to be considered fixtures and conveyed at Closing. Generators that are permanently wired is one of the bulleted items. This means that the seller likely breached the contract by removing the generator instead of delivering it to the buyer as required by the contract.

Now that your buyer knows that the generator is missing, they may request that it be re-installed or replaced. If the seller refuses to do so, and the buyer completes Closing, the buyer will likely have a hard time seeking relief against the seller. Paragraph 4(h) of Form 2-T states that upon Closing, the buyer is accepting the property in its then existing condition. In this case, that would mean the existing condition in which no generator is conveyed.

Since the buyer’s ability to seek relief against the seller becomes very difficult post-Closing, they must decide whether to hold up Closing until the seller cures the breach or proceed with Closing and accept the breach.

A buyer who is responding to a seller’s breach, such as this one, is not breaching the contract themselves by not Closing (assuming the buyer is in full compliance with the contract themselves). This is because when one party breaches a contract, the non-breaching party is entitled to seek legal remedies such as monetary damages, cancellation of the contract, and even specific performance.

Here, if your buyer does not want to accept the seller’s breach, and the seller is not willing to agree to cure the breach prior to the scheduled Closing in a way your buyer will accept, then the buyer may need to seek legal counsel to be advised about which remedy is best. If your buyer is willing to accept the seller’s breach, then they may proceed with Closing and accept the property as-is.

Release Date: 8/14/2025

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