How Fights Over Fixtures Can Derail a Closing
The New York TimesAugust 23, 2013Even at their smoothest, residential real estate closings are not for the faint of heart. At stake is nothing less than the roof over the buyer’s head, but the repercussions can be primal when, just before the culmination of a deal worth hundreds of thousands or, in many instances, millions of dollars, weeks of negotiations unravel when the buyer and seller suddenly squabble over who gets custody of something as inconsequential as a $150 ceiling fan.
“It’s the real estate version of road rage,” said Paula Del Nunzio of Brown Harris Stevens.
There is a chronic dynamic at work here. Sellers are wary of having parted too cheaply with a profound investment, their residence. Buyers are leery of having paid too dearly and often are already punch-drunk from the trauma of the financial frisking endured during co-op board inquisitions or mortgage applications.
With the stage preset for regret and recrimination, and with lawyers at the ready to advocate in different directions at the drop of a dollar sign, nothing brings the process to a screeching standstill like a quibble over an inanimate item — a dusty chandelier, a sputtering air-conditioner, a wobbly Ikea shoe rack — that incomprehensibly assumes trophy status in the calculations of both buyer and seller.
“Closings are such a heightened emotional event,” said Lindsay Barton Barrett of the Corcoran Group. But their immediate prelude can be just as hazardous. “You can literally have a multimillion-dollar deal fall apart at the last minute, in my case over a dining-room table,” she recalled.
That transaction died when the buyers demanded that the seller throw in his custom-made table gratis to seal a hard-fought deal. “My seller was insulted, and it killed the deal. He said the table made him do it.” (The duplex quickly sold to a less demanding buyer.)
Streamlined negotiations, thy nemesis is an eight-foot-tall fiberglass resin replica of the Statue of Liberty bought as a husband-to-wife birthday gift on Canal Street 25 years ago and a family member ever since. For the prior decade, the statue had been the silent guardian of the east terrace of an East 58th Street penthouse triplex that went to contract, after a million-dollar reduction, for $2.4 million last November. The terrace statuary had, through the years, served as a measuring stick that recorded the ever-escalating heights of the sellers’ grandchildren; as such, it possessed sentimental value on the scale of a priceless heirloom.
When the cash buyer indicated that she wanted to acquire the penthouse fully furnished and to close within two weeks, the husband/seller, Chuck Mintzer, dutifully compiled a short list of excluded items but neglected to add Lady Liberty. By definition, this oversight lumped her in with the furnishings that were staying put, and the buyer was intransigent.
Pearl Mintzer was apoplectic after she found out that the statue was destined to become the property of the buyer and, after berating her husband for his insensitivity, threatened to halt the sale. She was perfectly sanguine about leaving her custom-made purple leather sofa with aqua piping behind, but the prospect of parting with her $750 statue floored her.
“I loved that statue and told my husband I didn’t care if the deal fell apart,” Ms. Mintzer said.
The deal, according to the listing broker, Tom Postilio of CORE, nearly did collapse, and he and his partner at CORE, Mickey Conlon, feverishly scoured the Internet for another eight-foot-tall fiberglass resin replica of the Statue of Liberty, rejoicing when they came across one for $1,200. “We couldn’t believe we were having this conversation about finding a statue online, but I said to Mickey: ‘I’m not letting this deal die. We’ll buy a statue and send it as a closing gift.' ”
The trouble was, neither party would accept a replica of the replica. Ultimately, Ms. Mintzer wrote a letter to the buyer begging her to understand how important the statue was to her. The buyer relented and agreed to do without a Lady Liberty; the statue and the Mintzers relocated to New Hope, Pa.; the deal actually closed.
“We were absolutely thrilled to be able to keep her,” Ms. Mintzer said.
According to Scott Claman, a real estate lawyer and a partner in the New York City firm Giddins Claman, squabbles over objects at the penultimate point of contract negotiations are far from uncommon. “We refer to it at the office as ‘Post-Traumatic Deal Syndrome,’ ” Mr. Claman said. “But if you can make it through a closing and nobody sues each other, that’s the universal sign of happiness in New York City.”
Elaine Clayman, an agent at Brown Harris Stevens, turned to Mr. Claman for guidance when negotiations over a $4.5 million duplex at St. James Tower on East 54th Street went awry after a buyer-seller standoff over a $35,000 sculpture, a jagged metal work that wrapped around the curve of a winding staircase.
“It never could have hung anywhere else,” Ms. Clayman said, “because a passer-by would have been impaled on it if it was mounted on a flat wall. As it was, it almost killed the deal. Both sides wanted the piece of art, so it was a slow-moving, excruciating negotiation. They did finally reach an agreement, but believe it or not, it then turned out the condo didn’t ‘exist’ as a known entity in the building or in city records.”
After a few months of research, Mr. Claman was able to finesse the provenance of the duplex, a combination with an adjacent apartment. He registered the necessary paperwork with the city; the sale finally closed for $4 million. “We both got gray hair from that deal,” Ms. Clayman said. But not the buyer: she got the sculpture.
In 2010, Shii Ann Huang of the Corcoran Group suffered through a bellicose tussle over a nondescript ceiling fan in the master bedroom of a $700,000 two-bedroom at a white-brick co-op in Murray Hill. Ms. Huang represented the buyers, who had justifiably assumed the fan was a fixture that was included in the purchase price.
“There was no mention of it until we were close to closing,” she said, “and the sellers told my clients they would give them the ceiling fan for $300. My buyers put their foot down and said no.” The meeting was adjourned; the closing suddenly wasn’t so close. It seemed the fan had created a stalemate.
Ms. Huang said she and the broker representing the seller ponied up the $300 themselves to resolve the dispute and seal the deal. A few months later, her clients invited her to the apartment to display the renovations they had done, and she noticed that the fan was gone. “They had thrown it away,” she said. “So the whole fight was really over nothing. There is something psychological that goes on at closings where people feel they’ve got to get something extra.”
Rory Bolger, a broker with Citi Habitats, wound up footing the bill for two chandeliers after a deal on a $599,000 unit on East 86th Street started to unravel last December. The trouble began when the seller, a daughter who was handling the details on behalf of her ailing father, decided she wanted the dining-room chandelier. “It was this sort of medieval-looking cast-iron chandelier that had belonged to her parents,” Mr. Bolger said, “and though she initially seemed O.K. about leaving it, after her father died, she changed her mind.”
The buyer, however, wanted a dining-room chandelier in place when she took possession, and when Mr. Bolger suggested that she select one and he would buy it, she presented him with a request for two fixtures. “They were very modern, nothing at all like the one that was there,” he said. “It ended up costing me about $500, but it was just too minor of an item to leave a bad taste in anybody’s mouth.” The sale closed in June with both sides satisfied.
The iron chandelier now hangs in the dining room of the daughter, Susan Milisits, a social worker who remembers her parents buying it for $35 in the Village in the 1960s. “It still had candle drippings on it and wasn’t electrified,” she said, “but my parents had it wired and it had hung over their dining-room table wherever they’d lived, first in Brooklyn, and for the last 15 years at the apartment on 86th Street.
“It had sentimental value to me,” she continued, “and Rory really came to the rescue and took the sting out of the whole experience. It was probably leading to some high drama if he hadn’t stepped in.”
“The principle of the thing” is the typical explanation offered by the warring parties: on the eve of a closing, even a humble medicine cabinet can become the locus of a nasty dispute.
Nadine A. Adamson had just returned to the city in 2009 after four years in London and, with her husband and young son, went house-hunting in Brooklyn and found the perfect town house on Downing Street in Clinton Hill. The seller was an antiques dealer, and both sides quickly agreed to a price of $1.042 million. But negotiations soured when the seller refused to include a bathroom medicine cabinet.
“It was an old wooden cabinet with a mercury-glass mirror,” said Ms. Adamson, now an agent with Brown Harris Stevens, “and it was attached to the wall and should have been mine. But he threw such a fit that I let him take it. He said he’d shaved in front of it for 41 years and wouldn’t sell me the house unless I gave it to him. I was desperate for the house, so I let it go.” It remains a sore point.
In the opinion of Steven Matz, a partner at the real estate law firm Katz & Matz, the cabinet probably should have gone with the town house. By his definition, the best way to ascertain what is or isn’t a fixture requires an imaginary exercise. “You take the home or apartment and put it in the palm of your hand and turn it upside down and shake it very hard, and whatever does not fall to the ground is a fixture.”
Mr. Matz said he had attended closings that stalled over things as mundane as the purloined towel and toilet-paper holders at a Fifth Avenue co-op (then again, maybe they were solid gold), and a missing light bulb at a $10 million Park Avenue co-op: “But it was a special German halogen light bulb, and technically it was the seller’s responsibility to have it in working order.”
According to Ms. Del Nunzio, “Typically what the buyer and seller are fighting about is not the towels or the mantelpiece the seller wants to remove at the last minute, but rather these items become a focal point for their anxiety.”
And then there’s the $1.18 million sale of a charming duplex at West 67th Street where a mantelpiece truly took a star turn in the negotiations, just as it had in the Corcoran listing, where it was mentioned no fewer than three times. The prospective buyers, Kate and Eric Jones, were instantly enamored of the original brick fireplace, antique mahogany mantel and curvaceous mahogany staircase, and made an offer at first sight.
Matters progressed smoothly until they visited the apartment for a preclosing walk-through and, to their shock, saw the wooden mantelpiece lying on the living room floor like a beached whale. The seller, one half of a divorcing couple, had ripped down the mantel, intending for it to move out with her. Through their agent, Jessica Cohen of Douglas Elliman Real Estate, the buyers lodged a protest.
“The mantelpiece was a material part of the quaint character that had endeared my buyers to the property,” Ms. Cohen said. “So the seller had to return it. It was actually funny to see.”
But it was more complicated than that, Ms. Jones said. When the husband learned what was holding up the closing, he removed his ex-wife’s expensive bike from the basement storage room. “He told her he was going to hold it for ransom and that she wouldn’t get it back unless she put the mantel back up,” she said. After a few tense weeks, the mantel was restored and the closing took place. But that’s not quite the end of the story.
“While all this was going on, we decided to have an appraiser take a look at the mantel,” Ms. Jones said. “It turned out it wasn’t a real antique and wasn’t really worth much at all.”
They have since ripped it out and given it away.