The MLS property description says the property includes the washer-dryer. However, the contract does not. A large percentage of Legal Hotline callers ask this “Does it stay or go?” question.
ORLANDO, Fla. – One Florida Realtors’ Legal Hotline question that seems to be asked over and over again concerns items or property itemized in the multiple listing service (MLS) that don’t also appear in the contract itself. In most cases, the call involves an upset buyer right before closing that did a final walk-through and discovered some missing items.
It’s very important for Realtors to understand this: Just because something is listed in the MLS description, it doesn’t mean that item is being conveyed in the sale. Remember that the contract governs the parties – not the multiple listing service.
Assuming use of the Florida Realtors/Florida Bar Residential Contract for Sale and Purchase (FR/Bar), the most commonly overlooked items tend to be the washer and dryer. For example, let’s say the MLS states that the property contains a washer and dryer, but the buyer fails to add that into their offer under the personal property section. The seller then removes them before closing, and the buyer is upset that they aren’t there when they do their walk through.
If the contract is silent as to the conveyance of the washer and dryer – meaning it isn’t in the preprinted language or added by a party into the contract – the seller isn’t obligated to leave the washer and dryer in the property, regardless whether the MLS mentioned those items as part of the property or not.
However, a different contract – the Contract for Residential Sale and Purchase (CRSP) lists the washer and dryer in the personal property section language. Therefore, buyers wouldn’t need to specifically request this in their offer if they use the CRSP form.
Since contracts differ and vary in their terms, the details are important. It’s vital to take the extra step of verifying information like this in your contracts.
Listing agents: Ask sellers which items, if any, they would like to take with them when they move. You can ask this when touring the property with prospective customers or after you have the listing.
In some cases, sellers don’t realize they want something because they haven’t thought about it yet. In this case, ask something like, “Is there any item of sentimental value that you to remove when the property sells?” They might suddenly realize that they want the recently acquired custom drapes in the living room or the family heirloom chandelier in the dining room. (Draperies and light fixtures are both included in the Florida Realtors residential contracts preprinted language). If so, make sure the contract excludes those items so there isn’t a conflict later in the transaction.
Buyer’s agents: For buyer’s agents, is there something specific the buyer loves about the property – something that could conceivably be removed before closing? For example, they may want to ensure that the quaint front porch swing hanging from ceiling hooks stays with the house or maybe the kids’ backyard playground equipment.
While the buyer could argue that the above items are fixtures and therefore subject to conveyance, specifying them in the contract can avoid problems later.
Bottom line: Make sure the contract form you choose either includes the desired item in the preprinted language or you add it to the personal property section to make it part of the transaction. Taking extra time to clarify certain things in advance can benefit the parties and get everyone to a successful closing, which is the ultimate goal.
And “It was in the MLS” does not mean “It was part of the contract.”
Meredith Caruso is Associate General Counsel for Florida Realtors
Note: Information deemed accurate on date of publication
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