Last week our client was in for a shock, when they arrived at the property they were purchasing on the morning of settlement. They walked into the kitchen, ready to do their final inspection, only to find that the dishwasher had been unceremoniously yanked from its spot.
This raised some interesting (harrowing) questions on whether or not a dishwasher can be removed before settlement.
Now, you’re probably thinking, “But wait, there’s an ‘inclusions’ box for the dishwasher on the front page of the contract, isn’t there?”
Yes, there is.
But sometimes, vendors can be a little attached to their beloved Fisher & Paykel and want to take it with them to their next abode. In that case, they’ll ordinarily mark it as an exclusion and their position will be clear. The purchaser will either have to hand-wash dishes or leave some room in their new mortgage for a new dishwasher.
What happens though, when there is a dishwasher in the kitchen, and it is neither marked as an inclusion or an exclusion? Despite not being marked as an inclusion, is it still considered a fixture? Or can the vendor take it with them?
We have always taken the view that a dishwasher is much like an oven or air-conditioning unit (and not like a fridge or washing machine) and is therefore a permanent fixture. Accordingly, as almost anything else bolted down, it cannot be removed unless it is marked as an exclusion. Can you imagine a vendor taking their favourite toilet with them? No, neither can we.
With that said, however, we’ve also never had a buyer purchase a property where the vendor took the dishwasher with them without it being marked as an exclusion, so we haven’t been able to test our theory. Well, today was our lucky day because this is exactly what happened.
The lawyer for the vendor took a different position from us (no surprise there!), which is that a dishwasher is not a fixture and if not marked as an inclusion, the vendor is entitled to pack it into their removalist truck together with their couches and family treasures. Who'd have thought that a dishwasher carried the same sentimental value as Grandma's favourite armchair?
Regardless of who is right or wrong legally, the reality is that when settlement is 30 minutes away, removal trucks are waiting on a busy street in Woollahra and the parties are in full stress mode, it is not a time to be having a legal stoush.
So, here are our key takeaways to avoid a debacle like this in the future:
If you are a vendor’s legal rep, check closely with your client whether they want to take or leave the dishwasher. If they are leaving it, it should be marked as an inclusion. If they are taking it, it should be marked as an exclusion. No need for a Jungian analysis of any deep attachment to the dishwasher – just a simple 'yes' or 'no' will suffice.
If you are a purchaser’s legal rep and the property contains a dishwasher, but it has not been marked as an inclusion and your client would like the dishwasher to remain in the property, make sure it is marked before exchanging contracts.
And for goodness’ sake, make sure to check for the dishwasher before settlement day!
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Judith Hammerschlag is a lawyer, conveyancer, and co-founder of Contrax, an Australian, family-owned contract admin software platform designed for conveyancing practitioners and home buyers.
