Does the fridge convey if it was only mentioned in the MLS?

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A modern kitchen with white cabinets

02/04/2016 | Author: Editorial Staff

A seller authorized me to advertise in the MLS that her refrigerator conveys with the sale. But when she sold her property, her contract didn’t mention the refrigerator at all, so she took it when she moved. The buyer says she should have left it since it was advertised as conveying with the sale in the MLS listing. Does the seller have to give the buyer the refrigerator?

No. If the signed contract does not state that the refrigerator conveys with the property, the seller does not have to leave it. Previous negotiations and advertisements, such as in the MLS, aren’t enforceable like a contract signed by the parties. This situation is an example of why agents should help clients ensure all material items of prior agreements are contained in the signed contract.

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Categories: Legal
Tags: legal, legal faq, sellers, buyers, forms


Comments

THERESA AKIN on 02/14/2016

When representing the buyer and pulling properties for viewing, one of the first things I do is check what conveys.  Whether or not it is in the MLS means nothing to me, I’m checking for my own peace of mind. I will make a note on that listing after speaking with the listing agent. Often there will be an amendment in the listing agreement that should go into the MLS but failure to insert.  If in doubt always check it out.

Rick DeVoss on 02/12/2016

I am having a hard time with the idea that a lender demanded an “appraisal” for non-realty items, just because they were attached to a real estate contract on a Non-Realty Addendum.

That lender obviously did not know what they were doing.  I will submit that you could have challenged the underwriter’s opinion, but you might have to get an attorney to do so.  Selling Real Estate is one thing, but selling personal property is something altogether different.  Personal Property, such as a refrigerator, may have a significant value, and could even be “appraised” if the buyer & seller wished to do so.  ~What if the seller was selling some expensive jewelry to the buyer of his house?  —Would the lender require the jewelry to be appraised as part of the house’s value??

All parties to a real estate contract need to be clear on what is “real” property and what is “personal” property.  I think Texas law is clear on this topic, and perhaps we need to call in TREC if some lenders are abusing said definition.

I encountered a loan officer once who thought he “represented” the buyer as his “client.”  —He obviously did not understand the definition of a customer, and was usurping my buyer’s rights to be represented by a Realtor.  ~He no longer makes loans for any of my clients…

If your lender is trying to include a $10 refrigerator in the appraised value of the property, then perhaps you are using the wrong lender.

P.S. > The seller can sell any personal property on a Bill of Sale if he chooses to do so.
Do not confuse that with your responsibility for selling the real estate on a TREC contract.

Rick DeVoss on 02/12/2016

Perhaps an extreme example will help to clarify things.

What if you were selling a piece of land with a mobile home on it?
(Mobile home as defined by having wheels on it, so that it could be towed away by a truck.)

If the contract says you are selling the real estate for $100,000, does that include the mobile home by assumption??    (Try defending that one in court.)

So I have a refrigerator plugged in out in the garage.  Does it convey?  Is it part of the “real estate”?  Was it mentioned in the Contract, or in the Non-realty Addendum?

What if I had a Tesla plugged in out in the garage…?  Does it convey?

We all need to stop making assumptions, and put what you mean to say in writing.

D Guy on 02/12/2016

I have experienced that the lender requires realistic values for non- realty items, not $1, $5 etc. I had a lender that was requiring an appraisal of the items, unless we did a bill of sale and no addendum. I did write the contract correctly with the non-realty items addendum. The lender’s requirements may differ from our contract writing requirements. The golden rule principle, he who has the gold makes the rules. Lucky you if you have not had this issue.

Rick DeVoss on 02/12/2016

I do not understand some of the comments made on this site.
Since not everyone writing herein includes their experience level, or even their full name, let me just begin by saying:  ~I am not an attorney, but I do have 36 years of sales experience in the DFW area, as well as a license in another state.

Realtors are held to a higher standard by the Code of Ethics.  —-Is it ethical to say that you are leaving a refrigerator in your MLS advertisement, and then not do so??  (Don’t forget: you, as the Listing Agent, represent the seller.  So, both you and the seller should have your act together when you post it in MLS.)

In my opinion, ALL information posted in MLS should be accurate, and the Listing Agent/Broker should take full responsibility for it.  ~It makes me sick to read that the Listing Agent thinks he/she can get away with all sorts of errors & omissions, and expects to place the burden of proof on the buyer’s agent.  —-If you are going to put a listing in MLS and expect to get paid for it, then for God’s sake, do it right!

Some items are listed in Paragraph #2 of the contract and specifically convey with the property, regardless what price you may have negotiated for the “sales price”.  If there is a “non-realty” item that is to be included, then according to TREC, you need to put it on the Non-Realty Addendum.

By its very definition, if it is not “real estate”, then it is not part of the appraised value of the “real estate”, and therefore, not of concern to the lender.  That is exactly why TREC promulgated the Non-Realty Addendum—for non real estate items that were being sold or given to the buyer.

Some of you seem to think that a dishwasher, (or otherwise built-in appliance), is not part of the sale, similar to a refrigerator.  ~This is dead wrong, and I won a case in court over just such a dishwasher.  —-Please read Paragraph #2, and consult a real estate attorney if you have any questions about what is or is not included with a sale.  By arming yourself, and your client, with the proper knowledge, you will likely prevent most law suits.

Basic Rule:  Don’t make assumptions!
If an item is considered part of the real estate, either by law or by contract terms, then it conveys.  But if it is NOT part of the real estate, then you (the buyer’s agent) had better spell it out specifically on the Non-Realty Addendum.  Don’t just say “the refrigerator stays with the house.”  —-If the seller is selling the refrigerator to the buyer for $10, (or any other sum), then you need to identify the item by its serial number.  (There is a big difference between my old $100 refrigerator in the garage, and a new one at Sears.  ....And this is the kind of stuff that leads to law suits.)

Let’s follow some basic rules, people.
  > Be honest.
  > Be specific when you are writing a contract, and all addenda.
  > Don’t make assumptions.
  > Take full responsibility for your work, and what you write, including MLS.
  > As the Listing Agent, you may work for the amount you wish; but let’s pay a buyer’s agent what they deserve for selling the property!  The commission contract between two brokers is stated in MLS.  It is not part of a normal contract between the parties.  (However, a buyer has the right to pay his agent anything he wishes, and that is what the “Buyer’s Representation Agreement” is all about.)

David Davis on 02/12/2016

By the way, it’s not the lender who will have a problem with the Non Realty Items Addendum.  It’s the Appraiser.  Now the appraiser has to try to assign a value to the non realty item(s).  On really close to value deals, this becomes a deal breaker.

Eddie Nadwodny on 02/12/2016

I alway include the non-realty Addendum with the contract and I have never had a lender question the items on it. Its up to the buyers agent to make sure they are writing up the contract correctly and including all the addendum’s. If its not on the contract then its not included.

David Davis on 02/12/2016

If agents are doing it, you can bet your sweet you know what that a Plaintiff’s attorney will do the same.

D Guy on 02/12/2016

Using the Non-Realty Items Addendum usually presents issues with the lender, especially regarding reasonable values for the items, i.e. refrigerator. There are usually work arounds, which I do not agree with and is not in the spirit of contracts and addendums, such as offering a reasonable price for the items and then adjusting the closing costs contributions accordingly. The seller’s intent is to offer the items (1) to incentivize the sell of the property and/or (2) the seller is not interested in moving or selling the items separately. If the seller has authorized the listing agent to include the refrigerator, this is usually noted in the listing agreement or addendum.  Also, as the buyer views the property and the refrigerator is not listed in the contract as an exclusion in para. 2D or special provisions, does the buyer rightly assume it is staying, especially if addressed in the MLS listing? I echo another comment that because it may be “legal” doesn’t make it the right thing to do. One of the things that bothers me the most are people (yes, agents included) that look for loop holes or small “cracks” in language or lack of to take advantage or to the disadvantage of others.

Stuart Scholer on 02/12/2016

Now I jus wanna make sumptin clear here….. In Texas….
Ifin it aint in wrattin, ya aint got nuthin!

Shawn Gray on 02/11/2016

We are all taught that the contract governs the sale. It doesn’t matter what is in MLS , advertising, or Seller’s Disclosures.  Most properties are advertised at a price that’s different than the final sale price. Everything is negotiable!!!  What I hear more than MLS is the seller’s disclosure. What I tell my sellers is to answer whether or not the item is present in the house. It absolutely does not mean the item conveys.

Faye on 02/11/2016

When I was taught contracts, items such as the refrigerator was specifically discussed because if you read Paragraph 2 items b and c of the 1-4 contract says improvements are permanently installed and built in is printed in BOLD.  My instructor said that means a refrigerator is NOT included unless it is part of the Non Realty Addendum.  Also if you are purchasing an older home that has a stand alone stove that is NOT included either.  Neither is the washer /dryer.  A stove, dishwasher or appliance that has surrounding cabinetry is included.
So I would interpret that to mean the sub zero built in refrigerators would convey but your normal every day refrig does NOT convey unless it is on the non realty addendum. 
Then when I got in my first office, the team leader told us she learned the hard way with a stand alone stove as she as the buyers’s agent had the priviledge to buy one for her new homeowners.
So in this example, the buyers agent failed; not the listing agent.  The listing agent cannot read the buyers mind nor is it the listing agent’s job to point out the buyers’ agent potential errors in the contract. 
And as Joe stated being correct legally does not mean you cannot get sued as we all know.

Violeta on 02/11/2016

I am 73 years old. I have always stated that before I retire or die I would like the public to have a different perspective of Real Estate agents or Realtors or whatever we want to call ourselves. Most Realtors are professionals and act as professionals and do the right thing. Only a very few of us are charlatans. Those few make the rest of us look bad. My humble opinion, we need to improve the forms (MLS, Non-Realty items, etc.)
This month I have been working with a buyer who signed the Buyers Representation Agreement. I am officially their Buyer’s Agent. We saw several houses. Buyer liked and wanted to make an offer on a vacant property that did not have any appliances. I went to the office and started to look for comparables to prepare a marker analysis. I saw a listing that had been in the market for more than six months. It was exactly the same house as the one the Buyer had liked.  It was $3000.00 more but the MLS stated that the house had a stainless fridge, gas range, and dishwasher. In the remarks it did not state that appliances were conveying, but where it reads appliances the three were written in.  I thought, why is the listing still available? The next day I took the Buyers. The appliances were almost brand new. Being in the real estate for several years, I told myself this does not seem right and I told the Buyers that I was going to call the listing agent. I called the real estate agency that had the listing and the secretary told me that she only worked for the Broker. She told me to call her directly. I mentioned that I had and I had left messages. The secretary told me to text her. I did to no avail. It was seven in the evening dark and cold. I asked them to wait until I had more information, but they insisted for me to write up the offer. I prepared the contract and included the Non-Realty form. I reminded the Buyers that they had not seen the Seller’s Disclosures. I showed them a Seller’s Disclosure with the disclaimer and told them that the items in the MLS, also do not always convey. Both Buyers, very sarcastic, told me that TAR needed to get rid of the forms. The Buyer made a higher offer thinking that the appliances were conveying.  I emailed the contract to the listing agent and the next morning by email I got a signed contract and a big cross across the non realty document and the Seller’s Disclosure. On the Seller’s Disclosure the fridge, range, dishwasher, microwave, a BBQ pit and a several other things were all checked.  Boy, Buyers were angry.  When I spoke with the listing agent after many calls, listing agent told me that her Broker wants her to write in everything, because everything is negotiable. WHY ARE WE DOING THINGS THAT MAKE US WORK, WORRY, AND WASTE TIME?  ON TOP OF THAT, BUYERS SEE US IN THE SAME CATEGORY AS A CHARLATAN. 

Stan on 02/11/2016

Let’s say the seller is including a $5,000 carpet allowance and has that information in MLS.  Do you write that in the offer?  Of course you do, if your buyer wants the allowance.  However, the buyer may want a lower price and no allowance.  Therefore you do not write it in and the seller assumes the buyer wants a lower price.  Same with the refrigerator.  The buyer may not want it.  Therefore, if the offer shows up without the refrigerator written in, the seller should consider what is being offered does not include the refrigerator. 
If the buyer wanted the fridge, the buyer’s agent needed to put it in the contract.  This is no fault of the listing agent or seller.

Dana on 02/11/2016

One could view it as the refrigerator conveying at the listing price, but if the buyers offer less than listing price, then they need to include that in the terms of their offer via the Non-Realty Addendum.    There may be two refrigerators; one in the kitchen and one old beat up one in the garage.  Without the Non-Realty, the seller could leave the one in the garage and fulfill the advertisement “refrigerator included”.  That’s not the highest and best way to handle it, but it would be hard to sue anyone at that point.  Buyer’s Agents just need to cover their clients with the Non-Realty and remove all doubt.

Michele Lafortune on 02/11/2016

I made the mistake once ...House was vacant. Sellers moved out of state. Seller’ agent informed me few days before closing that I forgot to included the frig and was laughing (I’m not joking) . I purchased it and told my buyers this was their house warming gift. Now when I’m on the seller’ side I never ever include it on MLS I keep it and use it during negotiation. This strategy has work beautifully.

Lee Hudman on 02/11/2016

This is all very interesting.  My brokerage requires all parties to sign an “information from other sources” form that specifically says that MLS, tax rolls, flyers, etc. can contain errors. I’ve also seen numerous times where the wrong thing was clicked on an MLS pull down field (fridge included would be one of these). As far as commission structure, my understanding is that since the MLS is the whole basis for commission sharing, that the amount in MLS prevails, and that putting any other amount in the commission space provided in the contract is against the boards rules (and is actually not part of the contract itself).

Laurie on 02/06/2016

Hi David, I am with you as far as what the MLS listing said. It said that the seller authorized the listing agent to advertise in the MLS that the refrigerator conveys with the sale. Coveys with the sale is pretty clear cut to me. It doesn’t mean maybe, or negotiated or for sale it means it transfers over with the sale of the house, that what that sounds like to me.  I don’t know how much more clearer that would be? I see all the time that the stove, dishwasher and microwave advertised as part of a kitchen and non of these are built in. It just makes me wonder now, if realtors should now be adding this to a non realty addendum to avoid this from happening if it is just that easy for a seller to say yes this goes with the house and then change their mind in the end if it isn’t written up. The poor buyers now can’t rely on what the MLS says to be true on clear cut items that are listed as part of the sale. This is just crazy to me.

David Davis on 02/06/2016

Laurie, In RE the One to Four Contract unless it is “permanently installed and built built-in” it sounds to me like it would be considered personal property and subject to the non realty items addendum.

In RE the article/post I think we all agree the Buyer’s Agent dropped the ball here.  However, I still think a strong case could be made for false advertising on the part of the seller.  In my humble opinion I think the Buyer’s Agent and the Seller should share the cost to make the Buyer happy here.  That being said, I’m still a hold-out for the instructions of the advertisement.  What were the instructions, and what was the advertisement?  Was the language in the instructions and the advertisement ambiguous, or did it have clear meaning?

Laurie on 02/05/2016

Okay, so this then gets me wondering…..can a seller then decide to take a stove, a dishwasher, an oven? These are all things mentioned on the MLS yet no one seems to put them on a non realty addendum. These are plug in appliances just like a refrigerator. It seems odd that you can say things are going with the house and then the seller renigs. That would be part of the price of the home if you are listing it as items incuded on the MLS as part of the sale of the home. I have seen agents specifically state what is not included so there are no assumptions. To think a seller can say something goes with the house and then the buyer makes his offer going by what is listed in MLS as what is included in the seller’s asking price and then the seller decides to take it, that just seems odd.

Cindy hills on 02/05/2016

Non realty addendum

David Davis on 02/05/2016

Patrick, I think the point that Joe is trying to make, and the one I am making here as well as on Facebook, is while we all agree the Buyer’s Agent dropped the ball here, and that the contract covers the conveyance terms, well as Joe put it, “pissed off people sue other people”.  If you haven’t figured that out by know you may need to take a longer look at this.  I used a phrase earlier I believe it was Facebook CYA or CYA.  either Cover Your Assets or Call Your Attorney.  Have you ever had to defend one of these suits?  Do you have any idea what it costs?  Time, money, lost production, etc?  Assume for just a moment that you win (afterall if you loose it will be trebble)  How must does the most expensive refrigerator cost?  Compare those numbers….

In the end I think the solution might be for the Buyer’s Agent to absorb some of the cost as (s)he obviously didn’t put the refrigerator into the purchase offer.  On the other hand, I would like to know what the advertisement (MLS) said about the refrigerator.  Did it say “refrigerator stays” “refrigerator included” which could be construed to mean one thing or “fridge negotiable” which may have no real meaning at all.

Candy Cargill on 02/05/2016

Our Texas Association of REALTORS has for years provided members with a Non-Realty Item Addendum, It is my understanding that ANYTHING that is conveyed that is not real property should be listed here, whether at no charge or being purchased by the Buyer. This should keep all parties out of court or mediation.

Joe on 02/05/2016

I don’t know Patrick.. I don’t think it’s quite as cut and dried as you make it sound.

One thing I do know for sure is this. Being legally right doesn’t mean you can’t be sued. Stating in the MLS listing data that something is going to be included with the home and then not including that item because someone forgot to complete a Non-Realty Items Addendum WILL piss people off.

Pissed off people sue other people. In this case the Listing Broker & Agent may get a summons to Small Claims Court. I have a feeling the Listing Broker would much rather split the cost of a refrigerator rather than pay attorneys and/or spend a day in court.

Patrick Connell on 02/04/2016

David, I answered the question on FB, you can find it there.

Joe, I disagree this is a listing agent problem. This is 100% a buyers agent issue and the buyers agent and/or Broker should be the one spending their commission money on a new fridge for their buyer. It is not the listing agents job to look out for the buyer or make sure the contract is written in such a way that it benefits the buyer.

I would certainly expect the listing agent to reach out to the seller and explain to them what the right thing to do would be, but if the seller says no, it falls back on the buyer side, not the listing. The only scenario I see a listing agent paying for a new fridge or sharing the cost is if their seller played a bait and switch and was being crappy about it, then a listing agent may throw in some money for risk mitigation, but that’s it.

Joe on 02/04/2016

Sorry for the proof-reading errors below. My point is this. On face value one or more real estate professionals screwed up, so one or more real estate professionals need to fix the problem. Right is right and wrong is wrong…

Joe on 02/04/2016

Or if the Listing and Buyers Agent both screwed up, maybe the agents both need to split the cost and buy the Buyer a refrigerator..

When people fail to do the right thing, that’s when lawsuits happen. When agents get bull-headed and want to play the “legal game” and that when the attorneys start making money rather than the real estate professionals..

Joe on 02/04/2016

Editorial Staff says “NO”...  Well, I think a better answer would be legally, probably so, but rather than going to court over it maybe calmer minds should prevail and someone needs to do the right thing. Maybe the Listing Agent should talk to the client and explain that the MLS listing data indicated that it was included. The Seller obviously signed off on advertising that the refrigerator was included. Maybe the Seller should seriously consider giving the refrigerator to the Buyer since it was advertised that way and that way possible litigation or mediation could be avoided. Or maybe, if the Buyer’s Agent made a mistake, maybe the Buyer’s Agent needs to buy the client a refrigerator. Somebody made a mistake and somebody needs to do the right thing.

A simple “NO” answer really doesn’t do the topic justice..

David Davis on 02/04/2016

@ Patrick I see your point that the Buyer’s Agent probably dropped the ball on writing the refrigerator into the contract.

David Davis on 02/04/2016

@ Patrick In RE: DTPA You are missing the point.  The Listing Agent was instructed to include the refrigerator in the advertisement. The Listing Agent did so through the MLS. The buyer purchase the property through a Buyer’s Agent that used the MLS information. Granted the contract describes the conveyance. I am not arguing that point. We all know that. What I am saying is that the seller falsly advertised something. That is DTPA. DTPA is trebble damages.

Patrick Connell on 02/04/2016

DTPA has nothing to do with this and would not apply; especially since every MLS states on the bottom of every listing that the information contained herein is not guranteed and should be independently validated.

If this gets missed, 100% on the buyers agent.

Joe Provenzano on 02/04/2016

This is a good illustration of differing sources of transaction governance. On the one hand, in this case, the contract would prevail over the MLS for purposes of the appliances,  (Prin-to-Prin) which seems most reasonable. I have read that with regard to Broker compensation (Broker-to-Broker) the MLS prevails over the contract, which does not seem quite so reasonable. In other words if cooperating broker compensation says 2% in the MLS and the contract says 3%, it doesn’t matter what the contract says - the cooperating broker is paid 2% as listed in MLS.  It seems odd to me that the MLS would serve as a source of transaction governance in any area. To agree with the previous comment, it is an advertisement, and just like any advertisement things are not always exactly as advertised when one actually consummates the sale – i.e. it is not uncommon for a sale to close at a price higher or lower than the advertised list price…  it’s called negotiation! I have to think court-testing things of this nature could prove very expensive for either side, given differing preferences of disparity resolution for various portions of the agreement.

Rodolfo on 02/04/2016

I just had a couple of closings with the same situation.. Can you elaborate a bit more please. Do to advertising DTPA?

David Davis on 02/04/2016

If the seller in fact authorized the advertisement of the sale of the refirgerator in the listing agreement and the Agent followed those instructions, but the seller later refused deliver the product as advertised this may fall under Deceptive Trade Practices Act violation on the part of the seller for false advertising.


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