Is the seller’s home gym a fixture that should convey?
QUESTION: On a recent final walkthrough, my buyer asked me why the Tonal Home Gym in the bonus room was missing. It was pictured in the MLS listing and stayed in the home the entire time we were under contract. Now the wall is patched but badly scarred. I reviewed Form 2-T (“Offer to Purchase and Contract”), and paragraph 2(a) says that all fixtures existing on the property should go to the buyer. Is the seller in breach?
ANSWER: The seller may be in breach. Form 2-T describes two categories of fixtures. The first is found 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” in this paragraph is not defined and is controlled by state law. North Carolina uses the Total Circumstances Test to determine whether an attachment is a fixture and therefore part of the land. The test examines four factors: (1) the intention of the person installing the attachment; (2) the permanent or temporary nature of the attachment; (3) the way the property was adapted to accommodate the attachment; and (4) the relationship of the person installing the attachment.
The second category of fixtures is located in paragraph 2(b), which contains a specific list. Some of the items in this paragraph are personal property, like the garage door opener. Other items easily satisfy the Total Circumstances Test. What paragraph 2(b) does is make sure the bulleted items convey by agreement, giving buyers and sellers more certainty about what is, or is not, included in the sale.
In this case, paragraph 2(b) does not address the kind of equipment you describe, so the question is whether it qualifies as a fixture under the Total Circumstances Test. It appears that Tonal Home Gyms are generally installed by professionals and secured to the wall much like a kitchen cabinet. As you describe, removal of the equipment is an undertaking that can cause substantial damage. Depending on a property’s layout, adjustments may be necessary during installation in order to accommodate the space needed to operate the gym’s equipment.
Based on the Total Circumstances Test, your buyer has an argument to make that this home gym was a fixture that should have remained in the property. The seller is certainly entitled to make an argument to the contrary, and depending on further facts developed, may also have a case to make that the home gym was personal property instead. Because of these competing legal arguments, the answer to this question will vary case to case. In order to avoid any surprises at final walkthrough or closing, we strongly recommend the parties address installed exercise equipment specifically in the contract in order to avoid ambiguity.
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