Does a refrigerator stay if it’s not in the Contract?

QUESTION: If a refrigerator is listed as personal property in MLS, does it automatically become a part of any contract for the property without having to list it in the Offer to Purchase and Contract?

ANSWER:  We’ve written about this subject before but it keeps coming up like the proverbial bad penny.  The answer to your question is an emphatic NO!

The MLS is a mechanism for MLS participants to make and accept offers of cooperation and compensation among themselves. Buyers and sellers are not MLS participants, and nothing in an MLS listing magically becomes a part of any contract between a buyer and seller.  Paragraph 20 of the Contract specifically provides that “[t]his Contract contains the entire agreement of the parties and there are no representations, inducements or other provisions other than those expressed herein.”

Any personal property included in the sale must be spelled out in the Contract.  Paragraph 3 of the Guidelines for completing the Contract (form 2G) states: “List all items of personal property that are to be included in the sale… It is advisable to list any item included in the sale about which some dispute may arise.” Examples listed include a refrigerator.

Who’s to blame if the refrigerator isn’t listed in the Contract and the seller takes it?  In our view, it is primarily the responsibility of the buyer agent to make sure that any personal property the buyer wants to keep is listed in paragraph 3 of the Contract.  However, we also think that the listing agent may bear some responsibility too.  If personal property is to be identified in the MLS listing, the listing agent should be careful to avoid wording that might lead others to believe that the items listed will necessarily be included, and should instead indicate that those items are “negotiable” or something to that effect.  Also, a listing agent may be setting himself or herself up for a potential claim that he or she has violated Article 12 of the Code of Ethics because they haven’t presented a “true picture” in their representations in MLS.  We are not saying that this would necessarily be a violation of the Code, but we are suggesting that the listing agent should avoid leaving himself or herself open to such an allegation.

Listing agents and buyer agents should take care to ensure to the extent possible that the parties are on the same page regarding personal property that will be or won’t be a part of the transaction.  Otherwise, they may well find themselves chipping in to buy a new refrigerator!

Release Date: 04/04/2017

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