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Practice Note
Practice Note – If in Doubt (or even IF NOT), Get it in Writing
This is an important time to consider the question of “intent” in the fixture test above and how to tell “intent?” It is a poor drafter (whether attorney or paralegal) who leaves all questions of whether personal property is a “fixture” in a real estate sale up to potential lawsuit and post hoc definition by a court. Make sure that when and if you are drafting a purchase agreement for real property, you get a list of more expensive personal property and fixtures that are to remain with the property, and those that the seller is taking with them. Then either include within the purchase agreement, or create a separate bill of sale and transfer, all the personal property and fixtures that are remaining, so that both parties are as clear as possible what they are transferring in addition to the real property. This is equally important when considering sales of business and mergers.
Good fences make good neighbors. Good contracts help set expectations and avoid litigation.
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