Is a free-standing stove a fixture that will convey with the property?

QUESTION:  I represent buyers who have a property under contract. The parties used the standard Offer to Purchase and Contract (Standard Form 2-T). In paragraph 2(d), where the parties are given an opportunity to list any items that are not owned by the sellers, and therefore will not convey, the word “none” was inserted. In paragraph 2(e), where the parties are given an opportunity to list any seller-owned items that will not convey, the word “none” was inserted again. The listing agent just informed me that the sellers do not own the stove that is in the property (they claim their son owns it). The sellers are also claiming that the stove is not a fixture because it is not “built-in”. My understanding is that it does not matter if the stove is free standing or built-in and that all stoves convey with the property unless they are identified in either paragraph 2(d) or 2(e). Am I correct about that? If so, what is the remedy for my buyers if the sellers refuse to convey the stove?

ANSWER:  You are correct. Paragraph 2 of Form 2-T is entitled “Fixtures and Exclusions”. Paragraph 2(b) provides that all items on the list in paragraph 2(b) are included in the sale as part of the Purchase Price unless excluded in subparagraphs (d) or (e). The list includes “All stoves/ranges/ovens.”  No distinction is made between ranges, stoves and ovens that are free-standing and those that are built in. They are all considered fixtures and they will all convey unless they are otherwise expressly excluded. Because the sellers did not list the stove in paragraph 2(d) or paragraph 2(e), they have a contractual obligation to convey the stove to your clients.

The question of remedy is more difficult. The sellers’ refusal to convey the stove is a breach of the contract between the parties. Arguably, that refusal is a material breach that would entitle your clients to terminate the contract (see paragraph 23) and recover their earnest money deposit, their due diligence fee, their due diligence costs and perhaps other remedies. But what if your clients do not want to terminate the contract? If they proceed to closing without an agreement in place, they could lose any legal remedy against the sellers. Paragraph 4(h) of Form 2-T notes, in bold, capital letters: “CLOSING SHALL CONSTITUTE ACCEPTANCE OF THE PROPERTY IN ITS THEN EXISTING CONDITION UNLESS PROVISION IS OTHERWISE MADE IN WRITING.”  We suggest that if your buyers want to proceed with their purchase of the property, and the sellers insist on keeping the stove, the buyers should reach some sort of agreement with the sellers, and then reduce that agreement to writing. You should not participate in the drafting of such an agreement as that would constitute the practice of law. Instead, an attorney should be consulted to insure that any agreement reached will be enforceable if the sellers ultimately refuse to perform.

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