Buyers shocked when shelves go missing

Q. We purchased our dream house last month. When we first visited the house, the family room had a beautiful pair of what we presumed were built in bookshelves on either side of the fireplace. They were made of a very expensive wood and looked perfect next to the ornate stone fireplace. I couldn't wait to decorate and fill the shelves with pictures, mementos and books.

The day before the closing we did our final walk-through and to our amazement, the bookshelves were gone. Our attorney immediately contacted the seller's attorney who promised to speak to the sellers.

The next day, a couple hours before the closing, the seller's attorney called our attorney and explained that the bookshelves were not, in fact, built in but were free standing shelves that were connected to the wall with a few bolts. Seller's position was that since the bookshelves were not included in the contract, they could take them.

I looked at our contract and there is a space to check "built in or attached shelving," which was not checked. We are furious that neither our attorney nor our real estate agent caught this (isn't that what we're paying them for?) and that it appears our oversight will cost us these shelves. Our attorney indicates we could file a lawsuit but the cost would probably far exceed the cost of replacing the shelves.

We are curious as to your thoughts on this and whether or not you think it may be worth trying to recover the shelving.

A. A couple thoughts before I address your issue. One, although the vast number of Realtors working with purchasers do their best to produce a positive and satisfying outcome for the buyers they are working with, in most circumstances, the agent is being paid by the seller and they are precluded from taking any action not in the seller's best interest. Known as the "selling agent," he or she has a responsibility to deal with the buyer in a fair and honest manner, but does not have fiduciary duties to the buyer. The selling agent will generally try to provide the best quality services to the buyer consistent with their duties to the seller.

Buyers have the option of hiring a "buyers agent." That agent's allegiance would be solely with the buyer. Information gleaned by that agent detrimental to seller's position could be disclosed to buyer to assist in negotiations. The disadvantage of this arrangement is, of course, the buyer's agent is paid by the buyer. In the vast majority of cases, however, the traditional method of both agents being paid by the seller prevails.

So, bottom line, don't presume all relevant information will be disclosed to you, though again, most agents pride themselves in the services they provide and do, in fact, provide excellent service to their buyers.

My second thought here is that when you see some item at a property you wish to purchase, or if you are selling and wish to take something that could even be remotely considered part of the real estate, include a provision in the contract including or excluding the item. The form contract commonly used in our area has a specific area for inclusions and exclusions over and above the items provided in the form contract. Utilizing this prevents the kind of surprise you experienced.

Now, for your situation. The general rule regarding the sale of real estate is: If it's attached, it stays, if it's loose, it goes. As the shelves were attached, regardless if by one bolt or fifty bolts, the general rule is they become part of the real estate and stay with the property. Of course, the seller will argue by not checking "built in or attached shelving" on the contract, you agreed to waive your interest in the shelves. I'm curious what other real estate attorneys out there would say, but my opinion would be that the general rule of law would trump the "did not check" argument and that the shelves should have remained with the property.

I would probably agree with your attorney that hiring someone to litigate this would probably not be cost effective. Most counties have a "pro se" court for these types of disputes, which is much like "The People's Court" on television. Contact the circuit court clerk in your county and inquire about this option. You would also have the option of filing your case in the county where the defendants reside.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tdr100@hotmail.com or call (847) 359-8983.