Question: We are scheduled to close escrow next week on a house in Peoria which was listed in the MLS as “including the refrigerator and the microwave.” Our purchase contract, however, did not specifically mention these two appliances. The sellers have now informed us that they will be taking these two appliances with them to their new home. Are the sellers entitled to take these two appliances?
Answer: Probably. The purchase contract generally controls over any contrary information in the MLS. For example, the seller’s sales price in the MLS is usually higher than the sales price negotiated by the seller and the buyer in the purchase contract. Similarly, the sales price in the purchase contract may have been lower because the refrigerator and microwave were not “included” personal property as required by line 45 of the purchase contract. Furthermore, if the sales price in the MLS is $100,000, the seller is not even required to accept a buyer’s offer of $100,000. The $100,000 sales price in the MLS is simply an “offer to make an offer.” In response to your question, if the two appliances are free standing, e.g., just plugged into the wall, and are not fixtures that were built into the home, the two appliances are personal property like a bed or a desk. Therefore, the seller should be entitled to remove the two appliances from the home. Note: The seller cannot misrepresent facts in the MLS. For example, if the roof is ten years old, and the seller in the MLS says that the roof is two years old, the buyer has a claim for damages against the seller for the difference in the value between a ten-year-old roof and a two-year-old roof. On the other hand, “puffing” statements made by the seller in the MLS like “beautiful views” or “close to schools” must be verified by the buyer.