The refrigerator only has to stay if it is a permanently installed and built-in improvement or if it is included on the Non-Realty Items Addendum to Contract (TXR 1924, TREC OP-M). The One to Four Family Residential Contract (Resale) (TXR 1601, TREC 20-16) signed by the parties controls the conveyance and states that the contract contains the entire agreement of the parties. Statements made in previous negotiations and MLS advertisements that are not contained in the contract will not be enforceable against the seller. This situation is an example of why it is important to ensure that all material elements of prior negotiations are contained in the signed contract.If the MLS listing said the refrigerator conveys but the contract didn’t include it, is the seller always required to leave the refrigerator for the buyer?
Buyers’s agents really do need to know how to write an offer and explain to their clients. Last year we had the listing and another Broker represented the Buyer who threatened not to close unless the Seller returned all of the patio furniture that was shown in the MLS photos. Nothing was in the contract about the patio furniture and the Buyer’s agent told the Buyer to consult with an attorney. We finally did close 7 days late.
Then why does commission advertised in MLS overrule commission stated in the contract?
Sorry, …but “commission” is Not stated in the contract.
~The contract is between the buyer and the seller. The commission agreement is between the two Brokers. You need to be sure you understand what that is before you show a house to a buyer. …And if necessary, get an agreement in writing from the listing Broker before you present an offer on the property.
Tricky for sure and amazing how many agents do not know about this information.
Page 9 of the contract regarding the commission is there to serve as authorization to the title company to pay the buyer’s broker directly from the listing broker’s commission.
The commission offered by the listing agent in the MLS becomes binding when the buyer’s agent submits an offer.
Listing Agents should stop putting “stuff” in the MLS if it is not factual. ~If the seller says that the refrigerator is for sale, then put the terms in MLS. Let’s not be scamming a buyer just because he forgot to send a “bill of sale” along with the offer. ~And, maybe it is the Listing Agent’s responsibility to make sure that a Bill of Sale is provided to the buyer if you are going to advertise personal property for sale. Buyer’s agents also have a responsibility to protect the interests of the buyer. ~If you told him that the… Read more »
“Scamming a buyer”? That’s a bit harsh. If the Buyer wants the refrigerator, it’s up to the Buyer/Buyer’s Agent to make sure that the refrigerator is included in the Non-Realty Property Addendum and included with the offer. Just because a Seller offers personal property in an MLS listing doesn’t mean the buyer will want or has to take those items. If he/she wants them, then put them in the offer. No mind-reading needed. Simple as that.
It seems that some people may be missing the point here in this discussion….. ~The “refrigerator” was not just advertised for sale in the MLS. It was offered by the seller as part of the property when she said it stays with the house. That means the seller has already given it up when she agreed to sell the house. ~The real fly in the ointment here is the lender. If it were a ‘cash’ deal, you could simply put the refrigerator in Special Provisions. But with a financed transaction, you will have to use a Bill of Sale for… Read more »
Wow, Rick. You really are clueless on all of this. And we wonder why TAR has to explain basic concepts like this.
Well, Mr. Harding, it is so nice of you to make your comments personal on here. ~There is not a single thing about the basic concepts that I don’t understand. Your remark makes us scratch our heads and wonder what it is that you don’t understand… ~I fully understand the law involved. I also understand what the contract says. What we are talking about here is ethics. If the Seller and the Listing Agent advertise to the public that the stupid refrigerator (one tenth of one per cent of the value of the property) goes with the sale of the… Read more »
I have to agree with Rick here. The seller was legally entitled to the refrigerator, but there was a deceptive quality to this negotiation. The seller didn’t say “refrigerator available,” but, rather, “refrigerator included.” The buyer’s agent should have included the refrigerator in the sales contract, but if he or she had, we wouldn’t be discussing this issue. It appears that the letter writer expected the refrigerator to go with the house as well. This might be a case where the agents get together and make the buyer whole. Not obligated to legally, I understand. But the listing agent’s client… Read more »
Rick- calm down before that vein on the side of your head blows out. Scam, no. Oversight, yes. However, we have all made that kind of mistake, and that is what an amendment is for during the option period. If the buyers agent doesn’t get it right during that time, shame on him/her. They should be buying the buyer a fridge for the mistake. I agree that if MLS says included, it should stay regardless, but that is not the law. It all boils down to intent. Did the seller and the agent post that it was included, intending to… Read more »
So…. Was it the Seller’s intent that the refrig would be included with a full price offer? Did the Buyer beat up the Seller on price negotiations so much that the Seller did not want to throw in the refrig any more? Maybe the refrig was given to charity after the contract was signed and the Seller wanted to get rid of it? Need I go on??? If the Buyer really wanted the refrig and expressed that… or never said that he did not want it then the Buyer Agent has the responsibility. In any case the Buyer Agent has… Read more »
Buyers agent fault. No ethics issue on seller/seller agent. For all we know, there was a competing offer of same price which asked for the fridge and they accepted this offer because it was a better offer by not asking for the fridge. Buyers agent needs to eat this one as they should have known to put it in writing.
What if it was included in the listing contract but not in the offer, does the seller have to remove it?
‘Ive been doing this for over 20 years and you see some crazy things that should not happen but do!!! In the County I was in you have purchase Agreements and work close with Attorneys who draw up the Contract and will ask questions. True the seller may have it in the MLS and as we know Sellers or Buyers change their minds So, as a responsible Buyers Agent you make sure it is asked for and signed off by both parties, and as a List agent I remind my client and do the same. Then you do not have… Read more »
Excuse me but does paragraph 2 (B), under improvement address the fridge issue. All equipment and appliances , valance, screens shutters, etc. ..is arranged to the address.
Non Realty Items, no need for bill of sale on a fridge.
Right. Some things are negotiated out after the offer was written.
Perhaps, the list price included the refrigerator and the final sales price wasn’t list. This situation could have been avoided had the Buyer’s Agent included it in the Non-Realty Items Addendum. Further, if there were negotiations on sales price or chattel, using TAR form 1926 to document negotiations would have benefited both the Buyer and Seller. The Seller’s Agent should have listed the refrigerator in section 2D under exclusions in the contract. If it is listed for sale in the MLS, and then excluded in the final sale it should be documented. Additionally, if the deal included third party financing… Read more »
No it was not part of the written agreement. Non Realty Addendum takes care of these items to be left on property.
My opinion— If the refrigerator is a built-in refrigerator, it is an attachment to the property and is Real Estate. In this case, it would not need to be mentioned in the contract and would transfer with the property. If the refrigerator is not built-in, it is personal property and not Real Estate. In this case it would need to be mentioned in order to transfer with the property.
I just dealt with a very similar situation. The refrigerator was listed in the MLS as being included with the home at a certain sale price. The buyer chose to negotiate a new deal for lower price and requested repairs INSTEAD of what was offered in MLS. The refrigerator nor any other personal property ever came up in the negotiations. We accepted the offer as presented and continued to negotiate requested repairs. The seller took her refrigerator when she moved. It wasn’t until after the deal was done and clear to close that the buyers agent decided to bring up… Read more »
All confusion would have been eliminated had the Seller’s Agent listed the refrigerator in exclusions in the contract.
Buyer’s agent fault for not doing the non realty item addendum, buyer’s agent should buy a new frig if he can’t work out something with the other side. Agree there is a legal and ethics issue but the ethics issue is with the seller, not the agents. In order to solve the issue, the agents should work it out and if not, buyer’s agent gets to pony up. On another note – it has always been weird that frigs and washer/dryers are NOT included because they are not permanently installed, just unplug, unhook water line and go BUT a range… Read more »
Sadly where I come from your word of mouth is your honor and bond and means something but Now it seems we have to get everything in writing -everything. Luckily 99% of the Agents I work with( for our clients best) are honest and good, Honorable and 99% of buyers and sellers are as well. The few that aren’t teach us lessons about getting everything in writing but no one is perfect- People forget things- it is better to keep your word even if later noticed ( forgotten item) and write amendment or non realty but as you see here… Read more »
Best answer award Cassie!!! I agree with you 100%
As a home inspector, I advise my clients to communicate with their agent about any item associated with the property which they care about; to not make assumptions about garage cabinets, portable sheds, refrigerators, etc. Could the buyer force the refrigerator to be returned? Perhaps, but the legal cost would exceed the cost of a new refrigerator. The cost of appliances are going up rapidly so be very clear or expect more of this type of nuisance.
I agree that as the buyers agent, you should protect your clients just in case…. This happened to me on a prior sale. On the agent and public remarks in MLS the listing agent had wrote, “All Appliances Stay!” then they went ahead and listed, refrigerator, dishwasher, range and very large Freezer located in the garage. This was a Relo Deal, so it made sense why the seller wouldn’t want to pack all these appliances with them. We paid full price and my clients were happy not having to purchase new appliances. Once we went to complete our final walkthrough,… Read more »
Thanks, buddy
A refrigerator, cook stove etc. is personal property and should be addressed in the form for non-real estate item . Make it a part of the contract. If buyer wants them.
What happens if microwave, washer and dryer were not a part of the MLS listing or the seller disclosure forms that I had signed because the house did not contain these items, however the buyer’s agent listed them on the contract as a part of the sale but I did not see them listed along with the items the house did already come with. I know it is my own fault for not reading carefully, but am I now contractually obligated to purchase and install these items in order for sale to close?
Thanks.
In my opinion TREC needs to change the rules enforcing all written representations on properties whether or not they exist in the contract. For example if the seller agent provides to potential buyers a list of all the updates/improvements then it should be implied that all the “updates/improvements” convey regardless of whether they are fixtures or non-reality items. Otherwise why include them as an “update/improvement”. That is false advertising . At a bare minimum if the update doesn’t convey and/or can be purchased then it should be clear in the documentation.
Buyers’s agents really do need to know how to write an offer and explain to their clients. Last year we had the listing and another Broker represented the Buyer who threatened not to close unless the Seller returned all of the patio furniture that was shown in the MLS photos. Nothing was in the contract about the patio furniture and the Buyer’s agent told the Buyer to consult with an attorney. We finally did close 7 days late.