Legal question:Selling house with built in tank, are fish pets?
 

Hello everyone,

So I am selling my home to some people. The tank has plumbing that goes through the wall to the basement sump. The buyers at first indicated they wanted the tank removed, so I sold all the livestock so that I could shutdown the system. My lawyer recently told me the tank is considered a fixture and therefore must be left for the buyers unless they sign an amendment.

Buyers wont sign the amendment now, and now that the livestock is gone the lawyer is saying I may need to replace the fish.

I disagree and am looking to see if anyone on here has any legal background that can tell me if the fish needed to be left for the new owners. I have tried my good friend google but can't find an answer.

The way I see it is that fish are pets, and no one would reasonably expect my cat to be included with the home! so why the fish?

Your agent is questionable. Fish are pets like dogs and cats . I don't think anyone when buying a house would expect the "spot" was part of the packaged. Hey where is the golden retriever that we saw when at the open house ?? Lol

I know when we sold our condo I had tanks attached to the wall. We had to write into the contract that they were not included in the sale. I would find it strange that the fish would need to be replaced.

However, if it wasn't specifically written in the contract that the fish and tank were to be removed you may be required to replace them.

I understand the tank as its treated the same as a fixture, but why the fish? If I had a built in litter box for my cat, does the cat come with the house too??

First buyers say get rid of it, now they want it? There is no possible way fish, coral, rock, powerheads, skimmer, anything not attached is included. Even the sump should be yours if it not glued down. I mean, what if you had a tank crash? You're on the hook to restock?? Madness!

this is your house that you sold. its a piece of furniture. your lawyer is looking at it as though you didn't renew your lease on a space you rented for a few years and the tank is a fixture, like something attached to the wall or a ceiling light. realistically take the tank, the buyer won't do anything

If the tank is a fixture, it sells with the house as it is deemed part of the house. Keep in mind, that's the empty tank, the actual property.

Contents of the tank are yours to do with what you please and, my guess is that the tank sells along with the house and it's the new owners issue.

Of course, all the internet advice in the world won't top a real estate lawyer and a brief consultation. Know your rights and position before you make a decision.

I agree that the tank is part of the house, there is nothing I can really do about that unless they had signed the amendment.

As far as the contents of the tank, i.e. live rock, water and critters that I am not clear on. I personally see no reason why they would be included from a legal stand point. Fixtures can be designed to contain other possessions, it doesn't mean those possessions are included. Lets say a built in china cabinet, the china wouldn't come with the cabinet right? However if the item in question was a part of the fixture that makes the fixture functional, like say in my case the main circulation pump, or a light bulb for a light fixture, I could see that being included.

But what do I know? I'm not a lawyer. When I asked my lawyer about it he just got upset about the question and in a very lawyer way evaded the question, which leads me to believe he doesn't really know and his advise is not grounded any any sort of law, just simply doesn't want to risk upsetting the purchasers.

Let's be realistic. If you just say no, the buyers are probably not going to walk away from buying a house they want. Just simply define that regardless of what law says, the fish were your pets and you found them an appropriate home. That's all you're going to say about it, like it or not.

If they want to insist, toss a damsel in the tank.

Or, tell them to FO, and cancel the transaction.

You are probably right that there is no way they would walk away at this point, they would lose their deposit at this point. The worst that would happen is a small claims court case , but they have no idea what I had in their for livestock.

Well I am for sure not going to be canceling the transaction, the Calgary real estate market is brutal for sellers!

By that logic the dishes in your cupboards and the clothes in the closets now belong to the purchasers too. Lawyers :rolleyes:

Ya, I wouldn't say cancel it as a first option, but honestly, this is dumb. What are we talking, half million dollar+ house? And they want to argue over some fish that they don't know a damn thing about?
If they insist, buy an undulated trigger and toss that in. Dirt cheap fish that will give them more grief than they could imagine :) Or add some guppies.

I agree with the tank stays and all livestock and accessories go
 

You definetly keep your pets (even if they are bristle worms). Your agent should be handling this for you so you don't have to stress. Otherwise I'd say anything attached as part of the house stays, and anything that could come like power heads could stay but will have to be added to the price of the home.

Clowns
 

maybe get some clowns in the tank for the new owners as they seem fitting. Manu up in the ne breeds them. I am not a lawyer so really don't have solid knowledge but I am bothered by your situation.

Well said Brad I agree. Things are way too politically correct these days! :wink:

If it were I......
 

Given current real estate is probably offer a 200.00 gift card for fish so they could pick and choose their own. Or a gift card to a maintenance company that could come in and teach them about the tank. Shows your willing to act in good faith.

All else fails clowns and damsels .

I wouldn't give them a cent. Seems to me like their realtor is trying to squeeze every last possible penny out of you. If they want to blow the deal based on a few hundred dollars worth of fish they are morons.

Anything fixed to the wall must be included. Contents should not be unless buyer and seller both agree and sign an amendment.

Not sure what the Calgary market is like, but if its like Vancouver tell them to F O, otherwise throw in some chromis.

I would also agree that the tank is a fixture but the livestock within are pets (i.e. YOURS). I'd be tempted to go with Brad's suggestion (i.e. "F.O.":wink:).

However, worse comes to worse, fill her up and add some cheap fish and be done with it.

Good luck.

Anthony

I'm not a real estate lawyer but:

What does your sales document say? All fixtures generally go along with a property transfer and any additional terms or conditions are written in (i.e. all appliances, microwave, washer/dryer, etc.).

At the end of the day, what does the contract/agreement you've executed say? If you put your signature to it, you've promised to uphold your end. This is a contract dispute, so a determination of your obligations will go back to what was written and what was said by each parties (although the written part is much more concrete).

Does the sale contract include the aquarium livestock? Did the purchasers ever say "we want to keep it all?"

If not, you indicated first that they wanted it all gone and had no interest in the tank. This is why you sold your livestock and (presumably) also tried to sell the hardware?

Sounds like you might want to go to a different lawyer.

I wonder if anyone on here actually has any legal background and not just an opinion :neutral:

Anyways, the initial sales document doesn't mention a thing about the aquarium.

I think as people have mentioned, these people just want to extract every penny they can.

I met the husband during the house inspection and he said he had no interest in the tank, and that he doesn't know the first think about fish let alone reefing.

I am very tempted to have the aquarium off and drained by the time we leave the house, but I guess it costs me very little to have it running. And our lawyer was pretty adamant about having it in the same condition as when the saw it last (fish and all). It is really too late to get a new lawyer, but would love a second legal opinion.

And yeah the Calgary market is brutal right now, and if these buyers walked away, I doubt I would be able to sell again in time to be able to close on our new very expensive house. Their small deposit would be eaten away quickly by the high penalty like interest I would have to pay on the new place until we can sell.

I would suggest the problem here is that this is likely the first time in the history of ever that this has come up, so even a real estate lawyer wouldn't have a good answer.
To argue in court, I would present that the fridge is included in the house unless otherwise stated. As it was not stated, it in included. That does not, in the view of any reasonable person, presume that the food in said fridge is also included. This can easily be transferred to the argument at hand, and if it went to court, you're going to win just using that comparison. Particularly since your fish had names and were considered, at least to you and your family, to be family pets.

However, if you want a real set in stone answer, don't ask the internet, hire and ask a lawyer who can answer this based on precedence in the field.

You mean a different lawyer! lol

Well stay tuned to see if what happens!

I have commercial real estate experience, and if your aquarium is an integral part of the house (like a dishwasher), then it will be deemed part of the house.
If you're leaving the aquarium anyways, it doesn't have to have fish in it. If you really want to sell the house and the buyers are going to be petty, fill it with freshwater and goldfish.

If the aquarium is a separate unit, stand, plumbing, equipment and doesn't leave any holes in the walls or floors, it's a piece of furniture that you can take with you.

Everything is a bargaining point, either the buyers want the house or they don't.

If you would like a second opinion you could try the Alberta Law Society "Lawyer Referral" service
I've used this before through the Canadian Bar Association of BC. it led to a 1/2hr consultation, which was very helpful. They give you a few numbers of lawyers in your geographical are and type of law you need assistance with. For me there was a $25 fee which as you know is damn cheap to have a lawyer speak to you. It looks as though in Alberta in may be free?

Have a read through this, there's a phone number to call. I know you're asking for legal advice from canreef but it seems like the legal department is on vacation right now :smile: http://www.lawsociety.ab.ca/public/lawyer_referral.aspx

When we bought our current house, it came with tank and inhabitants (that's how I got into this crazy hobby!). The seller asked us whether we wanted to keep the tank or not. We said yes, and wrote it into the offer (just like appliances), but didn't specifically mention contents and accessories (sump, pumps, etc). But he left us everything (and gave me some quick saltwater lessons).

There was also a pond in the back with some big Koi in it. He specifically asked to take the Koi a month or so later, to move to his new pond with his new house. That, too, was in the contract. I was fine with that, and ended up with a bunch of left over baby Koi in the sump pond anyway which I then transferred into the main pond. They are now all big. So that turned out fine for me too.

So in my case, it all worked out OK. But it helped by talking first and then specifying some details in the offer contract.

In your case, I would not want to jeopardize the sale falling through in a bad market. So would just give him what he wants. Probably a lot cheaper than hiring another lawyer or having a court battle over it.

But with real estate, it is not uncommon for both sellers and buyers (the real estate agents put them up to this) to try and wangle some last minute stuff out of a deal. Sad, but that's why you need to be vigilant with your own real estate agent when drafting offers (or counter offers).

I am not a real estate lawyer. The following is not legal advice and nothing said on a forum should ever be construed as legal advice.

In my experience, you'd be best served to hire a second lawyer for a 1/2 hour to 1 hour consultation. Call them up, explain your issue and ask for their opinion. It might cost you $100-200 for their time (ask for the fees too in advance). It seems like a straight-forward issue that they will be able to answer quickly.

You gotta look at the big picture here. What do you stand to lose (by way of deposit, Real Estate fees, placing house back to market, etc.) if this sale goes sideways? If the buyer walks away (even if you're in the right), are you prepared to hire a lawyer to pursue this case in court?

If you don't know the answer to those questions, you NEED legal advice. Or else you're opening yourself up to a host of issues that will cost FAR more than a brief consult with another lawyer. At this point, you may need to begin collecting documents and making notes in case this matter IS litigated.

Also, review your documents with your Realtor to see what exactly was promised (in all honesty, if you see a second lawyer, they'll want this document also).

That is what I call sound advise. personally I would go with the second recommendation.


So true. Being politically correct is making this country a nation of spineless weenies.

Re-reading this, I see only this

The lawyer is suggesting you MAY have to leave fish. Have the buyers asked for fish? Or is this just simply based on some random lawyer comment?

Personally, I'd leave a glass box full of cold water and some sand. The rest is contents and I'd be taking them with me.

I mean this in the sincerest of ways. Keep in mind you're posting on a public forum.
I am totally on your side here. Just know that canreef is a very public site and said purchasers may decide to look into what it actually takes to setup and keep a saltwater aquarium running. You never know where they might look. :surprise:
Defence lawyers looooove social media. Facebook as an example has won and lost many court cases in recent history

Anyhoo, if said purchasers read this thread. Give Seth a break! They were his pets and he did what he thought was best for them. There are many fish in the sea and we will help you with whatever you need! As long as you dont introduce yourselves as this couple...kidding

Good luck with how this turns out Seth, and your new house with your new tank!

Ya. OH, and FO

Lol, the voice of wisdom. We don't really know what they said though do we. Something lawyers love to say, "speculation your honour!"

Ya, maybe they have no desire to have fish. Probably just think the tank is worth big bucks and hope to recoup some costs.

I bought a house once , came with a hot tub. But they drained it before I took possession .
My opinion : they're buying hardware - tank , plumbing etc. No Contents !!!

I personally think that is a fair and reasonable expectation! However in my dealings with these people they have shown that they are far from reasonable. They wanted me to remove all of the rock hardscape from my back yard. Including the 4 foot high boulder retaining wall that the developer put in because it was a necessity.

I guess we will see what happens. They are suppose to take possession on the 30th.

I personally hope they just sell it to someone who will actually appreciate all the hard work that went into to designing the tank and building it.

Perhaps I should have picked a more anonymous user name:neutral:

Oh and to answer Brads question, no they have not explicitly responded to me informing them that I already removed the live stock.

They did try to get me to sign an amendment stating that the aquarium would be left as it was the day they saw it, which I did not sign.

Honestly, I think the only legal requirement is to leave anything that is fixed to the house. Tank and attached plumbing only. I would remove everything else. I would expect any (good) real estate lawyer to tell you exactly that.

Just to update:

Purchasers came to the home yesterday to do a prepossession walk through. Previously I had the tank off; lighting, return pump skimmer pump, ATO ... all off. All the live rock I moved to the SW mixing tank which had a heater and powerhead running. I turned everything on the morning, and I guess the water in the SW mixing tank dropped a bit exposing a bit of the live rock to air, and it caused a bit of a smell!

Anyways the purchasers were all ****ed off that 1. The sump and mixing tanks were left (plumbed through the house) and 2. The smell of the live rock

So last night at 8 pm we get an email requesting us to remove the sump and the mixing tank. We explained that that equipment is part of the Aquarium system and then they changed their request to remove the rocks and drain the water (175 Gallons + 150 lbs of live rock) with 4 hours till we don't own the house anymore!!

Anyways my wife and I basically said F these people ,and today all the funds were transferred. So yeah, these people have been a treat to deal with! I should have drained the SW tank and sump and let all that live rock stink up the whole house!:twised: Hey its what they wanted right?