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What Happens to the Fridge Left Behind by the Seller?

Question:

What happens to a refrigerator the seller leaves in the house? We recently represented a buyer and after they closed on a house they moved in to find the seller had left the refrigerator.

There was no agreement that the seller was going to leave the refrigerator or that the buyer wanted it to be included in the sale.

Now several days after closing the seller is asking for the refrigerator.

Answer:

In Ontario, the first question is to determine whether it is a chattel or a fixture.

The contract will govern, but if there is silence on this issue:

1) chattels (personal property) are excluded, and
2) fixtures (part of the real estate) are included.

A built-in refrigerator is a fixture (as may be some which are considered to be part of a set). A roll-in or stand alone fridge would be a chattel.

Assuming that it happens to be a chattel which has been left behind, that's the end of application of real estate law or real property law to this matter.

The issue in terms of "possession" is now considered under the law of bailment, in this case, involuntary bailment, assuming that it was left behind by mistake.

This issue is not "ownership", but rather “possession”. Title does not pass because someone sold the real estate. Title remains with the seller.

Now, we have the seller's fridge sitting on or in the buyer's property by error.

The value of an item, doesn't matter when it comes to real estate conveyancing. So, the chattel-fixture issue governs. If it’s included, or excluded, those rules will govern.

Assuming that we are indeed dealing with a chattel, which is the personal property owned by the seller, left behind after closing, there are others areas of law which will apply, namely bailment.

But, when it comes to bailment, the value of the item does matter.

Consider 5 different objects left behind:

1) old newspapers,
2) the seller's ROLEX watch, left on a windowsill,
3) a Mercedes convertible in the garage, worth $85,000 (it didn't start due to a faulty battery),
4) a green garbage bag, left on the property for pickup,
5) letters that arrived in the mail, addressed to the seller, hours after closing, at least one of which included some cash.

The law of bailment would require the buyer as involuntary bailee to act reasonably with respect to each of the items. That means throwing out the old newspapers and the garbage while holding the other items for safekeeping for the seller. The buyer can transfer "possession" to a third party bailee, without liability, and if he stores the property, is entitled to compensation for his time and his expenses.

In this case it would matter if the fridge were worth $100, as compared with the $5,000 fridge, for the purpose of determining what would be reasonable in the circumstances.

Nevertheless, it is important to appreciate that cases of this nature are determined by the Courts under the law of bailment.


Brian Madigan LL.B., Broker
www.iSourceRealEstate.com

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