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The brochure prepared by the agent, was put out by the listing agent and placed in the box at the front of the home. That means they were part of the sale, or claimed to be by the agent. They may have been on the MLS as an exclusion, but the sheets prepared by the agent and available to buyers said they were included as an upgrade. What is represented to the buyers, takes preference over being someplace you never saw it.
What is attached permanently (bolted to the wall) is normally considered part of the property. They were stated to be an upgrade on the brochure the agent made up and distributed.
The way I would handle this if I was you, would be to notify the Listing and Selling Brokers offices, and the Salesmen involved to make good on paying for or re-installing the cabinets within 10 days or your were going to do two things. Make a formal complaint on misrepresentation and fraud by the salespeople and offices involved, to the State Realtors Association, and to the State Agency controlling licensing real estate brokers. No agency wants that kind of complaint made, as it could cost them their Board Of Realtors membership, and even their real estate licenses, if they do not make this right.
As a retired real estate broker, I can tell you this will get action. If they don't make it good within 10 days make formal complaints sent by registered letter to the state agency and the state association of Realtors, and indicate a copy was sent to the governor of the state. It will get action. Advertising as the brochure is, and the information was false as it was in this case, is considered fraudulent and deceptive advertising in every state.
Saying it was on the MLS listing as an exclusion is not a defense, when it was stated in the brochure prepared by the listing salesmen that it was an upgrade included with the house. That statement, becomes a personal guarantee by the agent it was included.
Sounds like a plan to me.
I am at a loss at how the buyer's agent is at fault.
Though she should have noticed it was on the MLS listing and checked to be certain where things were with the cabinets, getting the cabinets on the contract was the listing agent's responsibility. She blew it.
Buyer should not have to be in this predicament, they hired a licensed professional (eye roll) to look after their interests, fail. Buyer's agent incompetency led to this mess, they should take full responsibility, make full restitution to their client, accept the loss, and file it under a costly lesson.
I've worked with three different Realtors in my life and each of them told me those two things I underlined. They made it clear that ANYTHING that was attached in any way could be assumed to convey, so my best bet was to remove it. Anifani, if you have any kind of cabinet ON a wall, by all means remove it. Also remove any kind of electronics that appear to be installed. In my last sale, my Realtor recommended that I take my flatscreen off the wall before I showed the house, so I did. I also once had a moveable cart in my kitchen and the Realtor for that house told me to remove it, saying it might be construed as a kitchen island.
That's the main reason I feel sympathy for the OP in this. The seller and the seller's agent seem to me to have some responsibility to be clear about what's being sold. Putting the garage storage system in the sales brochure as an asset, at the same time it was listed in the contract as not to be conveyed, seems stupid to me at best and purposely deceptive at worst. But, even so, I would agree that the contract the buyer signed prevails.
I hate to remove the Welsh Cupboard and the top piece to my secretary (that hangs on a wall) . . . but I think you are right.
I had no idea flat screen tvs could be considered fixtures . . . ? Oh my.
After seeing the OP's latest description of the cabinets (they are not freestanding and must have been pretty heavy, and thus bolted securely) . . . I don't think they could be considered furniture.
I would think it is significant that the cabinets were there at the final walk thru. They were tenants after that and took down property that belonged to the new owner. Thats theft in my book.
You might be able to google a new address for the sellers. If not, you could hire a PI to find them. Couldnt be that hard unless they are purposefully hiding.
I hate to remove the Welsh Cupboard and the top piece to my secretary (that hangs on a wall) . . . but I think you are right.
I had no idea flat screen tvs could be considered fixtures . . . ? Oh my.
After seeing the OP's latest description of the cabinets (they are not freestanding and must have been pretty heavy, and thus bolted securely) . . . I don't think they could be considered furniture.
I didn't think flat screens OR their mounting brackets were fixtures either. I learned that from this thread...bizarre! Not every mount fits every TV so my preference would be for the sellers to take the mount with them and repair the wall where it once hung. I have a 55" LCD TV that has never been mounted to a wall. I'm not about to hang something that cost $2800 (in 2008) on wood paneling with no drywall behind it attached to 57 year-old wooden studs. Screw that! Plus, I've never seen a wall mount system that I thought looked good outside of hella expensive custom-built systems in magazines. At least I can hide cords easily on a console. You could argue that a TV mount is "attached" but you could make the same argument for those crappy Precious Moments collector plates I saw in someone's house. Well, they're hung on the wall, right? Then they're "attached." Erm...no. They're personal property, just like the TV mount.
But I digress.
In Texas, if it's a fixture that's attached to the house...it conveys unless specifically stated otherwise. That was the case in '09 when I bought and it's the case now. I hope the OP sues the crap out of the sellers and their agent.
You sure do seem to have a small claims case against the sellers directly. When there are items to be removed from the property by the seller with or without notice of conveyance, it is up to the seller to remove these items prior to close of escrow and recording of the sale and deed of the new owner. Since you gave the sellers a 7 day rental after ownership was legally established to be yours, it seems that the sellers were obligated to remove the cabinets prior to that date. If however, they removed the cabinets after becoming tenants, then they stole your property and should be held accountable for reimbursing at fair market value for that loss. I still believe that your own buyer's agent is at fault for not disclosing from the MLS listing that the cabinets do not convey and I still believe you have recourse in that regard against your agent. They have a fiduciary duty to disclose all "material" facts in your consideration of not only purchasing the property, but in all factors that effect the offering price of the property. Since you have mentioned you have not received a satisfactory response to the real estate chain of command, you could continue to pursue this avenue but I feel you would have a better and easier process through small claims court. As others have said, I must include a disclaimer that this not legal advice, just my opinion. Good luck.
what a clusterf***.... problem said already, but if the marketing paperwork stated that the cabinets did not convey, then your agent should have specified in the contract that that was fact. Since it appears your agent had an oversight on that, I'd put some blame on the buyers agent.
It's another animal that there was a rentback (hence why I HATE rentbacks).. A walkthrough should have been done by the buyers at closing, and then again after the sellers/temporary tenants after closing moved out (to release the security deposit..
That being said, had I, as a buyer, walked through to do the final signoff after the rentback and saw the cabinets missing, I DEFINITELY would not have released the security deposit for the rentback.. In my area, until both buyer and seller sign the form related to the rentback deposit, that money is not released by the title company.. The typical security deposit for a rentback likely wouldn't have covered the cabinets (if I read ITT the cabinets had a value of roughly $4,000), but it would have been a start.. Had the sellers tried to force the release of that deposit, they would have been up a creek (until it went in front of a judge)
I have a fountain I want to take with me (it is portable). I guess I need to remove it prior to listing. I had never even thought about that being an issue. Same for the sundial on pedestal, which is a collectible item and has been used at two homes.
Interesting and informative thread.
OP: I hope you find a way to resolve this without having to spend a lot of money doing it.
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