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What’s real property and what’s not?

July 13, 2012
By SYLVIA HELDRETH - Real Estate Law , Cape Coral Daily Breeze

Question: My husband and I recently sold our house. It wasn't easy. We have been preparing to move out because the closing is next week. I started to take down the living room draperies this morning. These are draperies I made by hand for the windows of our last apartment. They fit perfectly there. They fit perfectly here and they will fit perfectly in our new place. My husband saw me removing them and pitched a fit. He said that we have to leave them for the new owners because they are part of the real property. Who knew?! Should I just tell the new owners that we're keeping them when we see them at the closing? What about my rose bush?

Answer: Closing can be a stressful time. You would not want a dispute over what goes with the house and what doesn't at the last minute. By the way, it isn't all that unusual for you to not know about this. Anything which might be construed by the buyer as being "part of the house" and anything you never considered leaving behind, including homemade draperies, has the potential for a "Who knew!" quip.

What we do know is that real property is anything which is part of the land or attached to the house and is immovable (or can't be removed without damage) or anything which is incidental or appurtenant to the land. Personal property is basically everything else comprising all the possessions you take with you when you move.

The intent and manner with which an item is attached is considered in determining whether an article or fixture is real or personal property. For example, built-in appliances are usually considered real property but free standing appliances are usually considered personal property. If removing the item requires pulling nails, it's probably real property. If it can be unscrewed and removed without leaving any damage, it might be debatable.

As to your rose bush ... if an item on the land, let's say a tree (which is real property) is cut down and separated from the land (called severance), then it becomes personal property. It is also possible to do the same thing but the other way. If the tree that was cut down is used to build a home on the property, through annexation, it becomes real property. Unfortunately, you can't dig up your rose bush and call it personal property.

To avoid problems, both buyers and sellers should make detailed lists of any items to be included in the sale before closing. As a seller, you should have given your list to the closing agent. It may be too late but there is always the chance that the new owners didn't want the draperies in the first place. They may not like roses either. Remember, as with everything else in real estate, it's all negotiable.

It might be a good idea to discuss the property you want to keep with a real estate attorney.

Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is located at 1215 Miramar St., in Cape Coral.

This article is not intended as specific advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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