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Seller Sued For Missing Fixtures

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 638

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader is being sued by the person they sold their home to for missing fixtures in a bathroom. The buyer claims they had a verbal contract but the written contract contains nothing regarding the fixtures. Sam and Ilyce explain that a written contract usually is considered binding over a verbal contract but litigation is difficult, time-consuming, expensive and can be heartbreaking. If at all possible, you should try to resolve the conflict outside of court.

Q: My husband and I sold our home by owner last year. Our buyers have sued us for certain bathroom fixtures that had never been installed.
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We were going to install a bathroom in the basement and had the fixtures ready but these fixtures were not listed in the contract. The buyers claim that my husband told them that the bathroom fixtures were part of the home and claim that they had a "verbal contract."

However, when I negotiated the contract with them, the boxed bathroom fixtures were not included. Also, the contract provided that the buyers were to pay all closing costs.

Is there any chance they could win in court? At the closing we ended up paying some of the closing costs, do we have a legal right to recover the closing costs we paid?

A: It would be nice to think that your buyers have no chance of winning, but when you litigate, the outcome is never certain.

The purpose of having a contract is to avoid problems like the one you are having. There is a principle in the law that states that, in general, all issues negotiated prior to the execution of an agreement are not considered unless they have been incorporated into the final agreement.

If the boxed fixtures were initially negotiated as part of the deal and then not written into the final agreement, the law should assume that the parties intended to exclude the boxed fixtures.

As far as your buyers having a verbal agreement with your husband to include the boxed fixtures as part of the sale of the home, it appears that this is a term of the sale and the verbal agreement should have been incorporated into the contract.

When you have a verbal agreement and a written contract, the written contract should be what is relied upon for the terms of the transaction. Otherwise, a person could negotiate anything and everything, later sign a contract and claim that those items first negotiated and not included in the contract should have been part of the deal.

Now that you have been sued, you will have to defend yourself in court. Make sure you have copies of the contract and other closing documents with you to present your case.

If you represent yourself, you will have to indicate that the terms of the contract properly and adequately reflect all of the understandings and agreements between the parties. If the buyers inspected the home prior to the closing and the fixtures had already been removed, you will have to note to the judge that they did not object prior to the closing when the fixtures were already out of the home.

If you’re thinking about hiring an attorney, find out what it will cost you to have this attorney assist you. Obviously, it may cost you more to defend yourself than to give the buyers the fixtures or a check to cover the cost of the fixtures.

Litigation is difficult, time-consuming, expensive and can be heartbreaking. If at all possible, you should try to resolve the conflict outside of court. Good luck.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com