Q: When we put in an offer to purchase a former model home from the developer in “as is” condition this past in March, we thought it came with the furniture in the home office. Our Realtor came by our place and told us the furniture was being moved to another condominium in the development and that the owner of the development was making that their office. We found out later that the “owner” was just a regular buyer like us – and did not even own the furniture when we looked at buying the house. My questions are: first, does buying something in “as is” condition typically include furniture? Second, is there any possible recourse?

A: It appears that you’re confusing the terminology. When you buy a piece of property in “as is” condition, it generally only refers to the condition of the real property you are purchasing.

Real property refers to the house and the land on which it sits. On the inside of the house, it would include any fixtures, which would be items like attached or built-in light fixtures or built-in bookcases that are permanently attached to the property. Heating and cooling systems are generally included as fixtures and some kitchen appliances are considered personal property, although in some areas of the country, home sellers take some or all of the kitchen appliances, including the stove and refrigerator.

Personal property refers to the contents of the house, including the furniture and any items that are not permanently affixed to home. An example of the difference between real property and personal property would be a home’s garage. A stand-alone garage is generally considered to be real property, but the car inside is personal property. In a typical residential contract, the garage is viewed as part of the home. The car in the garage is personal property owned by the seller of the home and is usually not included in the purchase.

When you buy in “as is” condition, it means you purchase the home without regard to the physical condition. So, if there is a problem with the roof leaking, you cannot go back to the sellers and claim that they tried to hide this defect in the property. “As is” means you get the house as it is, without representations as to the condition of the property from the sellers. It’s truly “buyer beware.”

As to your specific question about the personal property coming with the real property in the purchase, you’d need to look at the terms of the purchase and sale agreement you signed. If you wanted anything that is typically considered to be personal property included in the deal, such as specific pieces of furniture, appliances, or other items, you or your Realtor should have written it into the contract. If it’s written into the contract, the seller should be obligated to leave it in the home for you.

There is a space in most purchase contracts that permits you to name the specific items that are to be left along in the house. Most contracts have detailed language relating to what needs to stay as part of the home and what the seller can take. Some contracts specify that tacked-down carpeting must remain. Other contracts go further to require the seller to leave all planted vegetation.

If you expected the furniture to stay, you need to assess how you came to believe that you would be entitled to get it as part of the contract. I know of a case where a home buyer liked the flat screen TV hanging in the living room of a home he was about to buy and believed that it would be his after closing. Imagine his surprise when he went to the home for the preclosing inspection and saw that the TV had been unplugged and taken on the wall mount. The TV had not been listed as an item included in the listing sheet nor in the contract and the buyer was out of luck.

If you wrote into the contract that the office furniture was part of the deal and the seller then took it, you might have a case against the seller. But if you didn’t put it in writing, then you probably don’t have any legal avenues to pursue.

Did you discuss this issue with your Realtor? If you had told him or her that you were interested in the furniture, she could have explained to you that it would not be included in the deal unless it was specifically negotiated and written into the contract.

But in any case, the seller couldn’t have transferred ownership of any items he didn’t actually own. If the furniture was rented or borrowed, the seller couldn’t have made it part of the deal. But if he agreed to sell them to you as part of the sale of the home, the seller might have an obligation to give you the money necessary for you to replace those items that had been agreed to in the contract.

For further details and possible legal options available to you, please consult with a real estate attorney or litigator.

June 4, 2009