Legal Fixtures and Your Home Purchase

 

Navigating the legal maze of property transactions and civil judgments requires understanding nuances that aren’t always obvious. Michael Mulligan, barrister and solicitor with Mulligan Defence Lawyers, unpacks two fascinating cases that illuminate these complexities.

First, Mulligan explores a cautionary tale about what constitutes a “fixture” in home purchases. When buyers discovered a beloved dresser missing after taking possession—revealing holes in the wall behind it—they sued for $7,430 in damages. The case hinged on whether the dresser qualified as a fixture that should remain with the property. The legal test? If an item is attached to the property in a way that removal would cause damage, it’s likely a fixture. Those IKEA bookshelves you’ve secured to walls? They might legally transfer with your home unless specifically excluded in the sale contract.

The same dispute involved “conversation sets” on patios—a vague term that led to confusion when the sellers removed chairs and a large wicker sectional. Despite going to court, the buyers received just $100 for their trouble, demonstrating how ambiguous contract language and litigation costs can result in pyrrhic victories. Mulligan’s advice is crystal clear: be specific in contracts about what stays and what goes when selling or buying property.

The conversation shifts to a disturbing case involving a disbarred lawyer convicted of sexually assaulting a potential client in his office. When sued civilly, he claimed any judgment would be pointless as he’d simply declare bankruptcy again. This reveals a common misconception about bankruptcy protection. While bankruptcy can discharge many debts, Section 178 of the Bankruptcy and Insolvency Act specifically excludes sexual assault damages, intentional torts, fraud, and court fines from discharge. The $270,000 judgment against him would survive bankruptcy—though collecting from someone without assets remains challenging regardless.

These cases illustrate critical principles: precise language prevents expensive disputes, bankruptcy won’t erase obligations from intentional wrongdoing, and winning a judgment doesn’t guarantee collection. Whether you’re buying a home or seeking justice through civil courts, understanding these legal realities can save you significant time, money, and heartache.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Legally Speaking June 5, 2025

Rob Buffam [00:00:00] And we’re going to be talking now and hearing some sage advice from one Mike Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Mike, welcome to the program.

Michael T. Mulligan [00:00:10] Hey, thanks so much. It’s always great to be here.

Rob Buffam [00:00:12] Yeah, and great to chat with you. It’s been a little while since I’ve had the chance to do that. You’ve got a bunch of issues you’ve been digging into to talk to our listeners about today. One of the things I think that you’d highlighted was this idea of fixtures. What are so-called fixtures? And what comes with a house when you buy it? This is the kind of time of year when people are looking at selling or buying their house or homes rather. So they might well be interested in what comes to the house when you look at it and you see something that you’re not sure if that actually is included with the purchase of the house, but you really like it. What can you tell us about this?

Michael T. Mulligan [00:00:44] Sure, I think it’s a good cautionary tale for people to be aware of when they’re doing exactly that, buying, or selling. And this was a case that wound up in court, I guess, is all my tales of woe do. And it was a case involving a contract to buy and sell a home. And ultimately, there was a back-and-forth exchange of contracts and offers and so on that were finally agreed upon. And as is commonly the case, the contract to buy and sell the house indicated that fixtures would be included with the house, so the first question is, what’s a fixture? And then the specific contract in this case specified something, so that’s not uncommon. You know, somebody goes through a house and says, “Gee, I really love that, you know, chair” or something, you could write that into the contract. And here, in addition to specifying that fixtures would be included with the house, it specified that a conversation set on the patios would be included. Well you can just imagine what happened. The purchasers showed up and took possession of it and a few things that they had expected to be present were gone. And it wasn’t controversial that they were taken, the issue was whether they should have remained or not and that’s how the case wound up in court. The first item in question was a, what was described variously as a dresser in a bedroom, but was also referred to by different people as perhaps it was a cabinet or maybe a vanity, somebody else called it a desk, in any case a big wooden thing. And the issue arose because it was present when the purchasers walked through the house and when they took possession of the house that item, the judge referred to as the dresser, was gone and behind it there were a couple of holes in the wall. And the significance of the holes in the wall is because of what the definition of a fixture is. And so there was nothing in the contract that specified whether you got this dresser or not. But the contract did specify you got the fixtures. And so, there’s been a long history of litigation over what is a fixture. Because human affairs are endlessly variable. But one of the starting points for determining whether a particular thing in a home is a fixture. It is to determine whether it’s attached to the property in some way.

Rob Buffam [00:03:10] That’s one of the definitions.

Michael T. Mulligan [00:03:12] …damage.

Rob Buffam [00:03:12] Okay, interesting. That’s one of the criteria. Okay, yeah.

Michael T. Mulligan [00:03:15] So you start with if the things are attached to the property by something other than its own weight. One of the first things to be looked at is can you remove it without damaging the property. And that’s important because some things might be attached to the property like let’s say your television set. If it’s just sitting on the floor and plugged in, if you could just unplug it. Without causing any damage, it presumptively won’t be a fixture, right?

Michael T. Mulligan [00:03:40] Yep.

Rob Buffam [00:03:40] But what do you do with the, in this case, where there are holes? And the purchaser’s theory of it was, well, the dresser thing was quite large. And so they concluded it must’ve been affixed to the wall. And sometimes you’ll see that, right. You know, if you buy a piece of furniture, there’ll be something saying, well, you’ll bolt this to the walls in case of earthquakes, screw it in. And if you do screw it in, you may turn that thing into, in fact, a fixture.

Rob Buffam [00:04:04] Can I stop you there for a second? Okay well that’s interesting because I’m thinking of our own den where we’ve got some Ikea bookshelves that I think we’ve probably attached.

Michael T. Mulligan [00:04:13] yep.

Rob Buffam [00:04:13] So that they the top of them doesn’t you know extend out a bit more than the bottom. Would we, I guess it would depend on judgement on this but are we setting ourselves up to be selling those bookshels with our house if we ever sell it and they and we’ve attached them in some even modest way to the to the room?

Michael T. Mulligan [00:04:35] Yes, that’s a common term it’s sort of these contracts will often use that term fixtures. And so if you’ve done what IKEA recommended and screwed the top of the bookshelf in, so it doesn’t topple over on you in the event of an earthquake, presumptively, you’ve turned that into a fixture. And so, if you don’t want that going with the house and you sell it, you should specify that in the contract, not including the bookshelves in the den, for example. If you don’t the starting point is going to be, those are a fixture. And that’s what was claimed here, that, exactly that. Now, the challenge for the plaintiff buyer was that the seller, defendant, also testified. They agreed they took the dresser with them. But their evidence was that, no, the holes in the wall weren’t caused by that dresser being screwed into it, despite the fact that it was tall. Their evidence was that was caused by a shelf that used to be there, and the dressers were put there to stage the home and hide the holes. And the trouble is that in a case where you’re suing somebody, the person doing the suing, making the claim, they’re the one who has the burden of proof. Now in a civil case, you only have to prove it on the basis of probability, not like a criminal case where it’s got to be beyond a reasonable doubt. But the judge accepted what the defendant had to say and there was no really contrary evidence from the, you know, buyers. They hadn’t looked back; they hadn’t seen the back of the dresser. And so on that basis, the dresser wasn’t a fixture. And so their claim for, they were trying to get $7,430 for this thing, that was dismissed. And the judge that had to move on to this issue of the, and this was written specifically in the contract, written in was that the purchasers would get the conversation sets. And here’s what happened with those.

Rob Buffam [00:06:20] Yep.

Michael T. Mulligan [00:06:20] When they looked at the home in the front, there was a table with four chairs around it. And at the back, there was a big wicker item of some kind that could seat, capable of seating nine people in the description. Problem for the plaintiffs here was what is a conversation set? And so the judge was struggling with that and obviously there are inquiries made including looking online, by I guess one of the parties about like what is the conversation set and the sellers left behind a table in two of the four chairs in the front, but not the other two chairs. So is that enough for a conversation, two people? What about this wicker thing? Is that a conversation?

Rob Buffam [00:06:58] An intimate conversation, so it’s not a term of art then, it’s not a legal term of a conversation set, this was just a phrase that had been inserted into the contract?

Michael T. Mulligan [00:07:08] Yeah, one of the real estate agents had written in that term conversation sets. And so the judge was struggling with, well, what do you make of that? And like one of the principles of the judge at least considered was this, there’s a concept called contrapreferendum and the concept there is if one party drafts the contract and the contract is ambiguous, it can be interpreted in favour of the other party. But that wasn’t really the case here because if there wasn’t an unequal power relationship, there were two real estate agents who drafted these things. And so the judge didn’t use that to try to settle it, but ultimately concluded that just that term conversations that was vague and the judge couldn’t determine whether this big wicker thing in the back, which was described by some people as a sectional furniture, constituted a “conversation set”. But the judge was prepared to go as far as to say that the table with four chairs around it did meet the definition of a conversation set, which then led to the question of, well, they got two of the chairs and the table. What are your damages? And the plaintiffs had tried, they found, I guess, online from Home Depot or someplace, a what was described as a luxury five-piece patio furniture set. And so they were trying to get $1117.76 cents for the missing two chairs that didn’t fly. The judge found that not appropriate damage here. And so ultimately, they were awarded $100 for the two chairs from the conversation set at the front. The other thing which interestingly was dismissed, and this is something people should know about, is that the sellers had set a counterclaim when they got sued for the conversation set and the dresser. And they had made a counter claim asking for things like 23 and a half hours of their own time for $100 an hour. And stress not enjoying a weekend away for a thousand bucks and losing a day of work for another thousand dollars now you can’t get any of those things in anywhere frankly but you’re certainly not getting them in small claims court and so all of those thing were dismissed you can bill for your time or for not enjoying your weekend as a result of being sued and so the successful buyer for all of their effort in going to court wound up with a hundred bucks and they wound up with a small amount of money like the filing fees you pay when you go to a small claims court. and so at the end of the day no doubt if their time was worth anything this entire exercise in litigation was not worthwhile but what is worthwhile if either you’re buying or selling a home and you’re particularly keen on the big wicker thing in the backyard or you want to make sure you get the what might be a dresser might be vanity or could be a desk in the other room. Carefully describe it in the contract and you will avoid spending a day or more in provincial court trying to litigate Whether something is a conversation set whether you get the wicker and whether the Bookshelf was screwed into the wall. So I guess the takeaway is be clear but the starting point of whether something’s a fixture and usually fixtures are going to go with the house, the starting point is going to be isn’t attached in some way that you’re going to cause damage getting it out, as opposed to just like unplugging the toaster and taking that away even though I guess in some theoretical way the toaster is attached to the wall it’s just attached in a way you could unplug it without doing any damage. So that’s what a fixture is so that’s why you should be careful and specific, so you don’t wind up spending your time in provincial court for a hundred bucks.

Rob Buffam [00:10:36] Interesting and these this group that are a family that purchased the house ended up with a hole in the wall as well they didn’t anticipate I wonder if you can just before we go to commercial I mean, I guess it would depend on each case But you you know, should you be vigilant about asking what’s behind that dress or is there a hole or?

Michael T. Mulligan [00:10:53] That’s interesting too, what’s often done, and this contract did this, is often contracts for purchase and sale will specify that the property would be in the condition that it was viewed when the person went in and viewed it. And so, if you, for example, go in and view a home and there’s no hole in the wall, and your contract is the usual language about it’s gonna be in a condition I saw when I came through the open house or came and viewed with my real estate agent, and the seller punches a hole in wall while getting their bookcase out of the house or something. Something that the seller’s going to be responsible for. But here, there’s no disagreement. There was definitely a hole in the wall, but the evidence from the seller was that, yeah, that was there already. And the plaintiff, I guess, the buyer, didn’t look behind the bookcase. So no compensation for the hole.

Rob Buffam [00:11:42] Interesting. Well, just before I let you go, I wonder, is there a reasonableness threshold there that, you know, you reasonably ought to have known there was a hole in the wall, or is that, are we getting too far into a negligence standard? I mean, it does seem in some sense, it seems a little bit unfair to have somebody assume that there is a hole-in-the-wall behind a bookcase or something like that.

Michael T. Mulligan [00:12:04] Sure. And yeah, they’re probably there would be a reasonablness consideration. And this wasn’t some gaping hole in the wall that you can see through the next room. What it sounded like from the judgement was a couple of screw holes. Like somebody had screwed something into the wall. In this case, it was a screwed in shelf on the evidence of the seller rather than the earthquake preventing strap from the then missing dresser. And so, yeah, there is going to be always an element of reasonablness. And the other thing about that is that, sometimes of course, in a contract to buy and sell a house, you’ll have a clause which would involve a home inspection. Those are interesting things in their own right, because usually they ex, they,  the home inspectors usually say their only liability are for things that they could reasonably see walking through it, and so the really tough cases get into things, like, you know, should you have noticed the hole behind the wallpaper or the you know the mirror that was left hanging in the hallway that sort of thing But here it wasn’t a gaping wasn’t the gaping chasm it looked it sounds like it was a couple of screw holes That they assumed was used to hold the missing dresser up.

Rob Buffam [00:13:10] Ineretsing, we’ve got to take a quick break. We’re speaking with Michael Mulligan from Mulligan Defence Lawyers. When we come back, we’re going to hear about a case involving sexual assault, damages, and bankruptcy. We will be right back.

[00:13:21] COMMERCIAL.

Rob Buffam [00:13:21] Welcome back to the program. I’m Rob Buffam, filling in today for Adam Sterling, our guest at the moment is Michael Mulligan from Mulligan Defence Lawyer. Welcome back, Mike.

Michael T. Mulligan [00:13:31] Hey, always good to be back.

Rob Buffam [00:13:34] Sorry, I interrupted you, there’s a case coming up that… That sounds like it’s quite interesting that you were gonna tell our listeners about.

Michael T. Mulligan [00:13:42] Yes, it’s a case troublingly involves a former lawyer, now disbarred, who was charged criminally and in fact convicted of sexually assaulting a woman in his office when she came to hire him, and obviously there’s something seriously wrong with this person. He apparently was wearing socks and dishevelled and came around his desk, sat by the woman put his head on her chest and then rubbed her leg. That was the nature of the sexual assault while she was in a vulnerable state trying to hire him. He was convicted and disbarred over that but then most recently sued for damages resulting from that. That experience had a long-term negative effect on the person who he did that to. And one of the interesting elements to it is that the case got, the civil case got to the point of discussing what the damage should be for that activity. And the plaintiff made counsel for the plaintiffs made submissions about various heads of damage and suggested an amount of $270,000. And the former lawyer indicated that he had already gone bankrupt, that he was dealing with health issues including a cancer diagnosis. And that he had no submissions to make in terms of the amount because the plaintiff would not even get a dollar because another $270,000 award would make no difference since he would just declare bankruptcy again. Now here, the judge quite properly said, well, you’re not really making any submissions about how much the award should be. So I guess it’s going to be $270,000 and awarded that. And first of all, that’s appropriate. The ability to pay a judgement is not a Consideration in determining what the judgement should be. If you sue somebody successfully and the judge determines what the appropriate award would be to put you back in the position you would have been in, but for what happened, the ability to pay is not a consideration. But you do that, you have to go about getting the money. And so what’s to be made about this fellow’s claim that he would just declare bankruptcy again? Well, what people should know about is that you can of course, you can declare bankruptcy. It’s not like Michael from the office where you just stand up and yell at, I declare bankruptcy, more than that’s required. But you could in fact declare bankruptcy more than once. The trouble and the reason why that submission that he made demonstrates a lack of understanding about how the Bankruptcy and Insolvency Act works is that while you can declare bankruptcy, various kinds of debts are not what’s called discharged as a result of bankruptcy. There’s a whole list of things that you could look them up in section 178 of the Bankruptcy and Insolvency Act for those playing at home and there was a whole of things, including things like fines and penalties imposed by a court. That kind of makes sense. Otherwise you could just be fined for something and declare bankruptcy and not have to pay it. But other things listed include awards made for, intentional torts or things like sexual assault. Also things like alimony payments, Debts as a result of fraud or embezzlement, various things of that are excluded from discharge. And so even if you go through the bankruptcy process, you still owe that money. And so if you think you could avoid paying the sexual assault judgement or the debt for your fine or the money you got by embezzling it from somebody, you’re going to be very unhappy at the end of your bankruptcy process when you’re told that you no longer have to pay your you know, Canadian Tire credit card debt, but you’re still on the hook for the $270,000. Thank you so much. Now, with that being said, and so that was just completely mistaken.

Rob Buffam [00:17:40] This is the lawyer himself who made that, that error in understanding. Yeah.

Michael T. Mulligan [00:17:45] And even more ironically, on the criminal trial for the same conduct, he was convicted, and then he appealed it on the basis that he had inadequate poor representation by his lawyer at the first trial. That went absolutely nowhere, pointing out in part he was a lawyer. But I suppose that has some additional resonance given his misleading or misinformed submission to the judge about the damages award here. Now, all that being said, it’s not smooth sailing for the successful plaintiff here. Bankruptcy won’t help at all, but the fact that this person has already gone bankrupt virtually by definition means he won’t have any assets. And if he’s got cancer and no assets, whether a second bankruptcy would do anything about the $270,000 judgement may be neither here nor there. Because when you’re a judgement creditor, you can do various things to try to collect on that, but that’s your, it’s up to you you could do things like getting an application of the person’s property sold or have their car sold or you know garnish money from their bank account. But if they have no car, no home, no money, and no job, t his fellows been disbarred You’re probably gonna have a pretty tough time collecting your $270,000.

Rob Buffam [00:18:58] interesting. So if somebody’s considering the impact of somebody not having much financial means, I guess that would be a factor to weigh in and something you might get advice on. If you’re contemplating bringing a court action or a lawsuit against somebody who may declare bankruptcy, it would not be a factor involved in the judgement of what any damage would be if you succeeded in your lawsuit.

Michael T. Mulligan [00:19:23] That’s absolutely the case when somebody is making a decision about whether you want to pursue litigation that can be expensive and time consuming. One of the things to remember is that in a civil case, really, at the end of the day, the only thing you may walk away with that from if you succeed is an order that the person pays you money. And if they have no money, there’s going to be nothing to collect from. Now, the other side of it, I guess, is that consideration, and people should know this too. Is when you have, like in this case, a criminal conviction for what amounts to the same conduct that you’re suing somebody for, that part is not going to be controversial, right, because in the criminal context, the sexual assault he was convicted that was upheld on appeal and for that, it would be required to be proven beyond all reasonable doubt, and that was established at the criminal trial. And when that happens, if there’s then a civil claim made for what amounts to the same conduct and sexual assault is one of those things that has both a criminal and civil element to it, you’re not going to have any issue at all proving that that occurred. You’re going to basically move right on too, well, okay, what are the appropriate damages for that? And that’s what happened here, and that’s to the context in which that exchange occurred. Also remember, of course, and people remember this from O.J. Simpson, you know, even if you’re acquitted criminally of something, you could be successfully sued for the very same conduct, Because there’s a lower standard of proof in the criminal, in the civil case. The fact that the glove doesn’t fit doesn’t mean that you couldn’t persuade a judge or a jury that you probably committed the murder or probably committed a sexual assault. And so, this is the opposite of that, where if there’s a criminal conviction, at least there isn’t going to be any issue of proof that the tort occurred. It’s just going to go on to what are the appropriate damages for that, and now I suppose for this person, whether she will be able to collect the $270,000 from the now disbarred, convicted and bankrupt former lawyer. Well, those different standards of proof.

Rob Buffam [00:21:29] Well, thank you very much, Michael. We’ve been speaking with Michael Mulligan from Mulligan Defence Lawyers.

Michael T. Mulligan [00:21:35] Thank you so much. It’s always great to be here.

Automatically Transcribed on June 13, 2024 – MULLIGAN DEFENCE LAWYERS