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