Posted On July 31, 2022.

It's vital to understand what goes with real property and what doesn't, and that starts with a basic lesson in appurtenance.

Buying or selling real estate can be a complicated process, no matter how many times you’ve done it. Unexpected legal issues can arise that put the transaction in serious jeopardy, often from a misunderstanding of real estate law by one or both parties. One of the most common causes of these confusing situations is appurtenance.

What Is Appurtenance?

Appurtenance, in short, is a concept that helps define what is included with a real estate sale. It can be kind of murky when it comes to things that were not originally appurtenant, but became so because of how they were attached to the property.

“Appurtenance – in regards to real estate – is when something becomes a permanent addition to the property,” explains Chris Foster, Broker-Appraiser at Foster Company LLC in Okarche, Oklahoma. “Appurtenance is important for buyers and sellers so they know what is included in the sale and purchase of a home; it’s the opposite of personal property that leaves or has the potential to leave with the seller and is not affixed to the property.”

Appurtenance can also extend to easements and plants, making the whole concept a lot more complicated. In the situation of easements, this is usually due to a property being landlocked and requiring right of way being granted across a neighbor's property for the owner to enter and leave.

When it comes to plants, they can be either appurtenant or not. Ornamentals, large trees and hedges tend to be appurtenant. If they cause significant damage when removed, they’re supposed to stay. Crops, on the other hand, are a little bit more complicated.

If crop plants are actively growing, in many states they still belong to the seller, even after the sale is complete. For the growing season of the sale of the property, the actively growing plants are usually allowed to be tended and harvested by the person, farmer or gardener, who planted them. The crop can’t be reseeded (although seed can certainly be saved for a new garden elsewhere). This is called the “emblements clause” and only applies to crop plants during the current growing season.

What Makes Something Appurtenant?

Appurtenance is a complicated topic that real estate experts have debated for decades. For most buyers and sellers, the biggest questions that come up tend to be about property that might be a personal item or might be considered attached to the home. In olden days, a popular and confusing example was about television antennas. An antenna was inherently a piece of personal property, but a lot of homeowners did things with them that would turn them into part of the real estate – in essence, making them appurtenant.

If the antenna was permanently attached to a chimney, for example, it might become appurtenant. If removal would cause damage to the chimney, then the antenna was considered by most to be appurtenant. If it was simply attached by straps that wouldn’t hurt anything to remove, then it was personal property. The same question can be asked about flat screen televisions or outdoor kitchen grills. If the item in question is difficult to remove without damaging the property, or if it’s meant to be permanently attached by design, it’s appurtenant.

However, intent also plays a big part in appurtenance. If something was only temporarily erected or established (in the case of easements), how appurtenant or not that item is may come down to how permanent it was meant to be when it was put in. An example where this might apply could be a freestanding outdoor shower. The plumbing is obviously appurtenant, but the stall itself might not be, since it may only sit on a cement pad and was never intended to be permanently installed.

Why Appurtenance Matters

When you’ve got a house listed for sale, or you’re touring one, it’s vital that you understand what stays and what goes, without question. This is pretty simple in a vacant home, but most homes aren’t vacant, which muddies the waters significantly. A lack of clarification on this subject can create not only disappointment, but legal problems that could complicate your transaction.

For example, most people would assume that a television was personal property. But what if that television is permanently affixed to a fireplace with a bracket that would do considerable damage if it was removed? Now, is it part of the sale or is it personal property? These are the questions that keep real estate lawyers busy and ensure Realtors and brokers don’t sleep well at night.

“Many times, as agents, we have to educate buyers and sellers about this topic,” says Ken Sisson, associate broker at Coldwell Banker Realty in Los Angeles. “A built-in barbecue, for instance, should not be removed by a seller after they’ve entered into a contract with a buyer. It’s built in and affixed to the land. Appurtenance!”

As for that television, in most cases, the bracket itself is considered appurtenant, but the television itself is not. So, you can take the TV to your new home, but you have to leave the hardware attached to the fireplace.

More About Appurtenant Easements

Besides a battle for a television or light fixture, appurtenance often comes up when it comes to land. As mentioned above, an appurtenant easement is a common application to help cure landlocked properties. There is no place in the United States where you can buy a piece of real estate that you can’t legally access, and this is because of easements that allow you to cross neighbor properties.

Appurtenant easements are the type that you want if you’re the owner or tenant of that landlocked property. The easement being appurtenant means that it will follow the land indefinitely, as opposed to land-crossing permissions that may only exist in a verbal or unrecorded contract between you and your neighbor and can cause serious problems later if one of you sells or passes away.

“Having to put in an easement to reach property that would be landlocked otherwise can cause a problem with a neighbor unless everyone agrees to the location of the easement,” said Realtor Donna Dinger of Murney Associates Realtors in Springfield, Missouri. “For instance, what if inherited land has to be divided in four parts? The back two would be landlocked without an easement from the road frontage properties, even if that means the easement takes several acres off the front two properties.”

Navigating the Gray Areas of Appurtenance

As complicated as appurtenance can be, the solution to the problem is usually pretty simple. If you’re the seller of a property, remove anything that might be considered a gray area long before you list your home. Solidify easements into permanent legal arrangements so they don’t become a problem when you’re trying to sell.

As a buyer, it’s even easier. All you have to do is ask. If you need to ask about 25 different things on the property, do it. It’s better to ask now than to get to closing and find out that half the reason you bought the place turned out to be personal property of the seller, or that an easement no longer extends to you and you’ll have to renegotiate with a neighbor.

Original Post: What Is an Appurtenance in Real Estate?