I am the listing Agent. At the last minute, my Sellers now tell me they want to take with them the backyard shed. The Sellers did not reserve the shed in the contract.
Can Sellers take the shed?
Believe it or not, questions like this one are very common. This question actually highlights two aspects of a Real Estate transaction: (1) the Duty of a Listing Agent and (2) whether a shed needs to be reserved in the Purchase Agreement.
According to La. R.S. 9:3893(A)(3), a Real Estate Agent has a duty to “Exercise reasonable skill and care in the performance of brokerage services.” This would include a listing Agent’s duty to thoroughly review the Purchase Agreement with Sellers and discuss with Sellers whether there are any items (including backyard sheds) the Sellers want to reserve in Lines 27-28 of the Purchase Agreement.
Now, for the question whether a backyard shed needs to be specifically reserved on the Purchase Agreement, please see lines 10-17 of the Purchase Agreement wherein the following items are listed as included in the sale (unless otherwise reserved in lines 27-28 of the Purchase Agreement):
“…all buildings, structures, component parts, and all installed, built-in, permanently attached improvements, together with all fences, security systems, all installed speakers or installed sound systems, all landscaping, all outside TV antennas, all satellite dishes, all installed and/or built-in appliances, all ceiling fans, all air conditioning or heating systems including window units, all bathroom mirrors, all window coverings, blinds and associated hardware, all shutters, all flooring, all carpeting, all cabinet tops, all cabinet knobs or handles, all doors, all door knobs or handles, all windows, all roofing, all electrical systems, and all installed lighting fixtures, chandeliers and associated hardware, other constructions permanently attached to the ground.”
Although a shed is not specifically listed in the above items, the Buyers have a couple of arguments in their favor that the shed should remain:
- Buyers could argue that, “all buildings and structures” includes backyard sheds.
- Additionally, if the backyard shed sits on a concrete pad and/or is permanently attached to the ground the buyer could argue the shed shall remain with the property.
Likewise the Sellers could argue the shed is not a building or a structure and the shed can be easily removed without causing damage to the property. (This is typically what happens in a lawsuit: Buyers allege one thing while Sellers allege another and it’s up to the Court to sort out everything).
However, (without any additional facts) I think most Courts would side with the Buyers on this one.
Therefore, it would be better to advise Sellers they cannot take the shed with them unless the Buyers agree in writing for the shed to be removed. (It never hurts to ask the Buyers! You never know, the Buyers might have plans to tear down the shed after closing. Allowing Sellers to take the shed could save the Buyers from a headache).
The lesson here: it is better to avoid any grey areas by thoroughly reviewing with Sellers all items that could possibly be removed from the property (without causing damage) and list in lines 27-28 the items the Sellers want to take with them.