Inclusions in a sale: How to prevent disputes
When a property is being sold, the various elements to include or exclude, such as movable property and other equipment, often come up for discussion.
Once negotiations are complete, these inclusions and exclusions become final. Any omission, error or ambiguity could become a source of conflict between the seller and the buyer.
Inclusions and exclusions
Items that are integrated or attached to the immovable, including heating, electrical or lighting equipment – a dining room chandelier for example – are automatically included in the sale, except if there is an explicit stipulation to the contrary by the seller, which could be indicated on the detailed description sheet.
Conversely, anything that is not integrated or attached to the immovable will normally be automatically excluded from the sale, unless it has been declared included further to negotiations between the seller and the buyer. Examples of such items would be a sofa, appliances, decor elements, kitchen island stools, etc.
It is therefore very important to identify the elements that the seller wishes to include or exclude and to be extremely specific in their description so as not to cause confusion. It is wise to describe the item by specifying its colour, model and location in the house to avoid any ambiguity.
When presenting a promise to purchase, the buyer must indicate all the items he would like to include in his offer. If the buyer wishes to include more than what the seller indicated on the detailed description sheet, the buyer can submit it in his promise to purchase. Again, clarity and detail are essential to reduce the risk of dispute.
As a broker, never assume that the list of inclusions in the transaction documents is identical to the one on the detailed description sheet. Take the time to validate each item by making sure that your client has read them and agrees with them before having him sign the offer or counter-offer.
Leased equipment
Some of the leased equipment can also be discussed as part of the transaction. This can include items such as a water heater, alarm system or heat pump.
Be sure to check if these items are paid in full or still on lease, and advise your client accordingly, because if the items are not owned outright, the seller cannot, strictly speaking, include them in the sale. It is therefore important to make the necessary verifications and to obtain the invoices and contracts in order to provide accurate information regarding these items. You will need to validate the contracts and make all necessary verifications before determining which elements can be included in the sale and which ones could be taken over by the buyer (e.g. items purchased on credit or lease).
The real estate broker’s obligations
In order to protect all parties, the broker must make sure to obtain and keep all relevant exchanges supporting the negotiations. A written record of verbal discussions can often avoid many problems.
The broker must also make sure that his client (seller or buyer) has read the list of inclusions and exclusions and that it corresponds to the client’s expectations.
The real estate broker representing a buyer must also obtain, if available, a copy of maintenance invoices or warranties applicable to the items included in the sale.
In addition, the broker must inform the parties of any factor that may affect the intended use of the inclusions, even if they are sold “without legal warranty of quality, at the buyer’s risk” (85 RBR).
Finally, if a dispute arises between the seller and the buyer, the real estate broker must never promise or even undertake to assume certain costs. In the event of a dispute or claim, whether potential or confirmed, the broker must immediately notify the FARCIQ so that a member of the team can inform him of the options available and the risks involved.
Remember: prevention is your best solution!
