Dear David: We bought a house that is closing next week. It has a hidden dog fence. The seller told us he gave the controls to a friend and inferred he would be removing the fence this week. Is this allowed? – FENCE FRUSTRATION
DEAR FENCE: The answer to your question will be found in your purchase agreement. In real estate, property is quite often categorized in terms of “fixtures” or “chattels”. Fixtures are physically attached to the house, while chattels are not. If you imagine turning a house upside down and shaking it, chattels fall out and fixtures do not. Typically, the fixtures will be sold as part of the house unless they are specifically excluded from the agreement.
A hidden dog fence usually consists of buried radio wire and a dog collar receiver. Because the wire is buried, it’s a fixture that would typically be expected to stay in place unless specifically excluded from the contract. Real estate industry folks often say that if you need a tool to remove an item, it should stay with the house. When dealing with things like washers, dryers, or gas ranges, it’s good practice to name each item specifically and either include it or exclude it from the purchase agreement.
In your case, unless the agreement specifically addresses the hidden fence and excludes it from the sale, it is assumed to be part of the property and cannot be removed prior to closing. If the seller has the right to dig up the hidden fence before leaving the home, it will say so in the contract and should be listed in the “fixtures excluded” section. Assuming the hidden fence stays with the home, the seller would be expected to supply any accompanying accessories, such as the receiving collar or controller.
Because their classifications can sometimes be unclear, fixtures and chattels have enormous potential to become a source of friction between buyers and sellers. Items such as a hot tub sitting on a deck or a fridge with an ice maker that is plumbed into a water line are notorious for causing confusion if not specifically addressed in the agreement.
When writing a purchase agreement, I like to include my personal “screw nail clause”, which speaks to the fixtures in a home, as well as any accompanying accessories. These accessories could include things like remotes for a garage door, controls for a ceiling fan, or in this case, the receiver for an invisible dog fence.
PRO TIP: An experienced Realtor is invaluable when it comes to writing an agreement that avoids the potential pitfalls of chattels and fixtures, while paving the way for a smooth closing with no unwelcome surprises. If you are ever in doubt, write it down.
This spring, David Schooley is partnering with 570 News host Mike Farwell and the “Farwell4Hire” Campaign in support of Cystic Fibrosis research. Now through May 30, David will donate $1000 to Farwell4Hire for every home his clients buy or sell. To reach David, call or text 519-577-1212.
