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REAL ESTATE 42: Defendants removed fixtures from the premises before purchase agreement signed.

This case arises from the sale of real property, in which plaintiffs allege that the sellers, defendants, wrongfully removed certain fixtures from the premises.

On March 21, 2017, the parties executed an agreement (“the Purchase Agreement”), which was prepared by plaintiffs’ real estate agent, in which plaintiffs would purchase the property from the Defendants for $3.5 million.

Paragraph 2 of the Purchase Agreement covered the scope of the agreement, setting forth what was being conveyed in the sale. It states, in pertinent part: SUBJECT TO ZONING ORDINANCES, BUILDING AND USE RESTRICTIONS, IF ANY, AND EASEMENTS OF RECORD, together with all improvements and appurtenances, now in and or on the property and including the security system; all attached carpeting; all attached lighting fixtures, all window treatments and electrical fixtures.

Plaintiffs conducted an inspection of the property on March 23, 2017 and requested a reduction of the sales price to $3,460,000 for seawall updates required on the property. The Defendants agreed to the price reduction. On April 28, 2017, the parties executed a Land Contract which stated that the sale includes all tenements, hereditaments, improvements, and appurtenances, now on or affecting the Premises.

Plaintiffs took possession of the property on or about May 1, 2017. Shortly thereafter, plaintiffs contacted the Defendants and asked for certain fixtures to be returned. The Defendants refused, stating that the fixtures were not part of the sale.

On May 23, 2017, plaintiffs filed a three-count complaint. In the first count, plaintiffs alleged that the Defendants breached the Purchase Agreement, by removing expensive fixtures from the property without plaintiffs’ knowledge or consent. In the second count, plaintiffs alleged wrongful conversion of the fixtures by the Defendants. In the third count, plaintiffs alleged fraud by the Defendants.

The Defendants moved for summary disposition of plaintiffs’ claims. The court granted the motions, finding that there was no genuine issue of material fact that the fixtures had been removed well before the Purchase Agreement was executed, thereby defeating plaintiffs’ claims of breach of contract and conversion. The trial court also ruled that no genuine issue of material fact existed as to plaintiffs’ fraud claims.

When claiming a breach of contract, plaintiffs must establish (1) that there was a contract, (2) that the other party breached the contract, and (3) that the party asserting breach of contract suffered damages as a result of the breach.

The important word in the purchase agreement is “now.” The Purchase Agreement was executed on March 21, 2017. Thus, by the plain terms of the contract, only those fixtures on the property as of that date were included in the sale of the home. Here, the evidence is uncontradicted that the fixtures in question were removed no later than February 10, 2017, roughly 40 days before plaintiffs executed the Purchase Agreement. In support of their motion for summary disposition, the Defendants submitted invoices from contractors, which showed that the fixtures had been removed on August 9, 2016, January 27, 2017, and February 10, 2017.

Consequently, plaintiffs have not established that a genuine issue of material fact exists as to whether the Defendants breached the Purchase Agreement, and the trial court properly granted the Defendants’ motion for summary disposition on this count.

Finding the right attorney to assist with the purchase, sale or acquisition of real estate is critical.

Whether you are buying or selling a home, or you are involved in a commercial real estate transaction, an experienced real estate attorney can make a world of difference. At Aldrich Legal Services, we offer comprehensive real estate services to a diverse clientele throughout southeast Michigan.

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