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Legal Matters: When is a fixture not a fixture

A reader and their condo's purchaser are in disagreement over the removal of flooring squares from the balcony.

Not all flooring tiles are equal, depending on whether they are affixed or simply lay flat.

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Not all flooring tiles are equal, depending on whether they are affixed or simply lay flat.

Q: We are in the process of selling our condo and in preparation for closing we have removed flooring squares from our balcony because we can use them in our new home and they weren’t included in the agreement of purchase and sale as chattels included in the transaction. The purchaser has done a final inspection and noticed we had removed the tiles and is now insisting that we replace them because she thought they were included in the transaction and even if they weren’t listed. She has stated that they are a fixture and therefore must be specifically excluded; otherwise, they should stay put. What should we do about this?

A: Firstly, the type of tiles you’re speaking about are not fixtures as they are not affixed to the balcony floor but simply lay flat against the surface. Therefore, if the purchaser wanted them included in the transaction, she should have listed them in the offer as a chattel.

However, of an even more basic nature, the balconies of almost all condos are not owned by the vendor but are considered common elements that simply allow the occupant of the living unit to exclusive use of the space. So, if the ultimate characterization of the squares is that they are affixed to the floor and therefore are included in the transaction, that would be a fight that the condo corp. would have to engage in, not the purchaser of a resale residential unit in the building who has exclusive use of the space.

Either way, the floor tiles are yours to keep.

Jeffrey Cowan is a real estate lawyer and can be reached at jeff@cowanlaw.ca

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