Will it stay or can it go?

Published 9:00 pm Saturday, October 21, 2006

Peggy Hansen is an avid gardener, someone who spruced up her Arlington yard with maple trees and flowerbeds stuffed with dahlias.

When it came time to sell her home, she thought about more than the furnishings and fixtures – she wanted to take some of the flora, too.

Homeowners invest time, money and heart into their yards. When it’s time to move on, what goes and what stays in the yard isn’t always clear.

Hansen wanted to take five trees from the property that held sentimental value, including a blue spruce from her father’s property in Idaho.

The Hansens’ home sold in June, not the ideal time of year to move trees. So they had their real estate agent write an addendum to the purchase and sales agreement, spelling out the exact plants they planned to take and a time frame in which they would come back to dig them up.

The buyers agreed and the two parties maintain an amicable relationship, said Hansen, who plans to retrieve her plants in February.

When there is no agreement, plant material – trees, shrubs and perennials – stay with the house when it’s sold. The situation can get muddier when a seller wants to take a semi-permanent structure, such as a trellis or large planters, said Drew Nielsen, an Everett lawyer who specializes in real estate law.

When there is a dispute, the courts consider how permanent a structure is, he said.

“It can be iffy,” he said. “It could make a big difference if something is hardwired into the electrical system or just plugged in.”

A trellis that is cemented into the ground probably stays with the house, while another attached to movable blocks might be OK to take, he said.

“The more permanent the structure and the more difficult to move, the more likely the court is going to say it’s a fixture,” Nielsen said.

Using an attorney or a real estate agent is the simplest way to avoid headaches, Nielsen said. An agreement drafted by an attorney or a Multiple Listing Service purchase and sales agreement written by an agent will almost always address this issue, he said.

Homeowners can get into trouble when they draft do-it-yourself agreements. Most people don’t think about smaller details such as whether the large $500 concrete flower containers flanking the doorway are staying or going.

“The smartest course of action is to be completely up front about it,” he said. “Don’t surprise the buyer in any way, and make sure what you’re taking is expressly spelled out in the purchase agreement.”

Barb Lamoureux, the Everett real estate agent who listed the Hansens’ home, said in her experience it’s easier to negotiate these issues before the deal closes. Sellers who want to take grandma’s antique rose bush should flag the plant before buyers preview the property.

If a seller wants to take something of value that might be an issue during the sale, they should take care of it before the property goes on the market.

“If you want to take four giant rhodies, take them out first and replace them with something else,” she said.

She also cautioned against removing anything that might hurt the value of the house. Sometimes a beautiful wisteria-laden trellis is what makes a buyer fall in love with a home. However, if the homeowner’s father made the trellis as a wedding present, then by all means, Lamoureux said, take it with you.

She advises her garden-loving clients to continue enjoying the yard but be prepared to leave it behind.

“Sometimes people will say to me, ‘I just spent two years getting this garden the way I want it and now I have to sell,’” she said. “I tell them to look on the positive side, they have created an opportunity for someone else to experience gardening.”

Reporter Debra Smith: 425-339-3197 or dsmith@heraldnet.com.