Safeguarding Your Investment: A Legal and Practical Guide to Transferring Included Furniture and Appliances in Cuenca Real Estate Transactions

The Nuance of "Included" in Ecuadorian Real Estate

In Ecuador, unlike some common law jurisdictions, the default legal presumption is that a property sale transfers only the immovable fixtures permanently attached to the land and structure. This means items like built-in cabinetry, light fixtures, and plumbing are generally considered part of the property. However, freestanding furniture, appliances, decorative items, and even sometimes curtains or rugs, are legally classified as movable property. Their inclusion in a real estate transaction is not automatic and must be explicitly agreed upon and documented.

This distinction is paramount. Without clear documentation, a seller could, in theory, remove items you believed were included, leaving you to source replacements at your own expense. Conversely, a buyer might attempt to claim ownership of items that were never intended to be part of the sale. Our goal is to eliminate ambiguity and ensure both parties' expectations are legally codified.

The Legal Framework: Beyond the Verbal Agreement

While a verbal agreement may seem sufficient between buyer and seller, it holds little to no legal weight in a formal property transfer. In Ecuador, all real estate transactions are formalized through a public deed of sale, known as the Escritura Pública de Compraventa. This document, executed before a licensed Notario Público (Public Notary), is the ultimate legal instrument that transfers ownership of the immovable property.

Crucially, the Escritura Pública primarily addresses the transfer of real estate. The inclusion of movable property requires a separate, yet integrated, clause within this document or, more commonly and often more clearly, within the Promesa de Compraventa (Promise to Purchase Agreement).

The Promesa de Compraventa: Your First Line of Defense

The Promesa de Compraventa is a binding pre-agreement that outlines the terms and conditions under which the final sale will take place. It's in this document that the detailed inventory of included movable property should be meticulously listed. This contract is legally enforceable and sets the stage for the Escritura Pública.

Key Elements to Include in the Promesa de Compraventa Regarding Movable Property:

1. Detailed Inventory List: This is not the place for vague descriptions. A comprehensive list should include:
   • Appliances: Brand, model (if known), color, and condition. Specify if they are considered "working condition." Examples: "Samsung Refrigerator, Model XYZ, Stainless Steel, approximately 5 years old, in good working order." "LG Washing Machine, Front Loader, White, purchased in 2020, functional."
   • Furniture: Type of furniture, material, color, and any distinguishing features. Examples: "Mahogany Dining Table with six upholstered chairs." "Two leather recliner sofas, brown." "Queen-size bed frame with headboard, wood, dark finish."
   • Electronics: Televisions, sound systems, etc., with specific models if possible.
   • Other Items: Curtains, blinds, light fixtures (if not permanently affixed in a manner that makes them integral to the structure), decorative elements, built-in shelving units not considered fixtures, etc.
2. Condition Statement: Specify the condition in which these items are being transferred. Phrases like "as-is," "in good working condition," or "with normal wear and tear" should be clearly defined.
3. Exclusions: Equally important is to list any items the seller is not including. This prevents misunderstandings.

The Escritura Pública: Formalizing the Transfer

While the Promesa de Compraventa details the included items, the Escritura Pública will typically reference the Promesa de Compraventa and, by extension, the agreed-upon inventory. Some notaries may opt to briefly reiterate the included items within the Escritura Pública itself, or simply state that all items listed in the Promesa de Compraventa are included. It is vital that the Escritura Pública does not contradict the Promesa de Compraventa on this matter.

Essential Due Diligence: Protecting Your Purchase

As your expat real estate broker, my due diligence process goes far beyond a simple walk-through. For included furniture and appliances, it involves:

1. Verification of Ownership: While less common for movable property than real estate, it’s important to ensure the seller legally owns the items they are selling. For high-value items like expensive art or custom-built furniture, there's a remote possibility of liens or financing agreements. This is typically covered by the seller's sworn declaration of clear title to all assets being transferred.
2. Inspection and Condition Assessment: Prior to signing the Promesa de Compraventa, and again before the Escritura Pública, a thorough inspection of all included items is crucial.
   • Appliances: Test every function. Check for leaks, strange noises, and visible damage. Ensure they are connected and powered on.
   • Electronics: Verify they power on and function as expected.
   • Furniture: Inspect for structural integrity, significant wear, stains, tears, or pest damage.
   • Fixtures: Ensure light fixtures are correctly installed and functional.
3. Municipal and Utility Checks: Ensure all municipal property taxes (Impuesto Predial) and utility bills are up-to-date. While primarily for the property itself, outstanding debts can create liens that could complicate the transfer process. We will verify this with the Catastro Municipal.
4. Confirmation of "Permanent Fixtures": We will distinguish between truly permanent fixtures and items that are easily removable but are presented as "included." For instance, a custom-built bookshelf that is screwed into the wall is likely included. A freestanding bookcase, however, falls under movable property.

Financial Safeguards: Ensuring a Smooth Transaction

1. Escrow Accounts: While not as universally standardized in Ecuador as in some other countries, we can explore options for secure holding of funds. For movable property, the primary financial safeguard is the Promesa de Compraventa and the Escritura Pública. Payment for these items is typically bundled with the property's purchase price.
2. Contingency Clauses: In the Promesa de Compraventa, we can include clauses that make the purchase contingent on the satisfactory inspection of all included items. If major issues are discovered that were not disclosed, this could provide grounds for renegotiation or even termination of the agreement, with your earnest money protected.
3. Final Walk-Through: Immediately before signing the Escritura Pública, a final walk-through of the property is non-negotiable. This is your last chance to confirm that all agreed-upon items are present and in the condition specified.

Real Estate Due Diligence Checklist: Movable Property

• [ ] Detailed Inventory in Promesa de Compraventa: Is a comprehensive list of all included furniture, appliances, and other movable items clearly itemized?
• [ ] Condition Specified: Does the Promesa de Compraventa clearly state the condition of each item (e.g., "working condition," "as-is")?
• [ ] Exclusions Listed: Are any items the seller is not including explicitly stated?
• [ ] Seller's Declarations: Has the seller provided sworn declarations confirming clear title to all included items?
• [ ] Physical Inspection (Pre-Promesa): Has a thorough inspection of all items been conducted by the buyer?
• [ ] Physical Inspection (Pre-Escritura): Has a final walk-through and inspection been performed to confirm items are present and in the agreed-upon condition?
• [ ] Functional Testing: Were all appliances and electronic items tested?
• [ ] Municipal Debt Check: Have property taxes and utility bills been verified as current?
• [ ] No Contradiction with Escritura: Does the Escritura Pública align with the Promesa de Compraventa regarding included items?

⚠️ Broker's Legal Warning: The Property Risk You Must Veto.

The most significant risk concerning included furniture and appliances is relying solely on a verbal agreement or vague descriptions. Without a precisely detailed inventory in the Promesa de Compraventa and confirmation in the Escritura Pública, you may find yourself in a dispute where the seller claims items were never meant to be included, or that they were in better condition than you remember. This can lead to costly replacements and significant stress. Always insist on a granular, itemized list with clear condition descriptions, and ensure it is legally incorporated into your purchase agreements. Never proceed with the signing of the Escritura Pública without a final, satisfactory walk-through confirming the presence and condition of all agreed-upon items.

Your Peace of Mind is Our Priority

Navigating the intricacies of real estate transactions in a foreign country can be daunting. My expertise in Cuenca's property law and market dynamics is dedicated to simplifying this process for you, ensuring every aspect is legally sound and financially secure. From the initial agreements to the final transfer of title, I am your unwavering advocate.

Ready to make your Cuenca dream home a reality with complete legal and financial assurance?

Schedule your free, property-risk consultation today and let's build your secure path to homeownership.