Re: removing assets from property in foreclosure

Posted by Bill H on October 23, 2006 at 18:52:21:
In Reply to: removing assets from property in foreclosure
Posted by rich on October 23, 2006 at 14:00:30:: we are in connecticut and property is in "strict foreclosure". We got our law day extended out to january and have had property on market for several months. lots of interest but no offers. have already reduced price 20k below market value. House is immaculate with many new updates. If we concede defeat and tell lender to come and get house what fixtures, appliances can we legally take with us. (i.e., stove, refrigerator, ceiling fans, etc.) I would not leave bare wires but replace expensive fixtures with cheap ones.

h Jim-V and Steele are spot on in their analysis of your situation; I too am not an attorney and do not play on on TV...that being said here are the rules for fixtures:
"What is a fixture, is this a fixture"? I am not an attorney and do not give legal advice. Good common sense and a look at what is called the law of fixtures
should enable you to determine if it "is" or "is not" a fixture and whether it is included or excluded
in a real estate transaction. Generally when personal property items are bolted, nailed, screwed, cemented, plastered, etc., or built into the structure or attached to the land it becomes a fixture, unless it is specifically excluded. The law of fixtures calls out five basic tests to determine if it is a
fixture:

1. The Method of attachment. If it permanently attached and cannot be removed without damaging the building, it is a fixture. Example, a television set can be unplugged and removed but a roof-top antenna that is bolted or screwed to the roof is included in the sale.

2. Adaptability for use with the property. When an item is specially built into the structure, such as a dishwasher or stove, it becomes a fixture. Likewise a portable dishwasher or free standing range is not.

3. Intention of the parties. What is the intent of the parties involved. If in a sale, the seller
specifically states, "This dining room chandelier is not included." and this information is made known to the buyer before an offer is made, even though it is permanently attached and would be considered a fixture, it is not included in the sale.

4. Agreement of the parties. Most real estate contracts spell out what is included and the parties
can agree to this list. Even though some may not be fixtures they are included in the sales price and sale.

5. Relationship of the parties. If the four tests above fail and it goes to litigation and court,
generally the courts will favor (a) buyer over seller, (b) tenant over landlord, and (c) lender over borrower.

Exceptions to the rules. Exceptions to these rules apply to business and trade fixtures and the owner is allowed to remove business or trade equipment which was permanently attached and the property (building) is restored to its previous condition.

DISCLAIMER: Use Common Sense: This is not intended to be legal advice and you are cautioned not to rely upon it as such. For legal advice, consult a real estate attorney.

Look closely at #5...if the lender knows the items are updated and considered that in the loan...and...they elect to sue....they may very well win.

Like Jim-V and Steele...I have never seen much market for used appliances. I guess I too wonder....Is it really worth the trouble...or...shall we say you are a bit miffed at the lender and want some vengance?

Good Luck,
Bill H

Old Chinese proverb...Be careful what you wish for you just might get it.