Fixtures and fitting - what goes and what stays?

Often when disputes arise between buyers and sellers, it is regarding an item of the home that was seen as a fixture, but was during the home sale process. According to Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa, it is for this reason that sale agreement between the two parties, otherwise referred to as the offer to purchase, needs to be clear regarding all aspects relating to the sale of the home. “It is not uncommon for a homeowner to have installed certain items in their home that they intend to take with them when they move. Even if the item is regarded as fixture, a seller is within their rights to take the item, provided the buyer is aware of the fact and is in agreement,” says Goslett. “Alternatively, if the agreement of sale excludes any specific item, the seller is entitled to remove it, which again points to the importance of ensuring that the sale agreement that covers all aspects clearly.” He notes that disagreements occur when the sale agreement is vague and does not list the specific fixtures that will remain in the property. According to Goslett, the seller should prepare a list itemising exactly what is to be sold with the house prior to listing the property with an estate agent. “The list should be incorporated into the mandate to sell so that the agent can point out to potential buyers any items that will be removed by the seller at a later stage,” he says. When it comes to fixtures and fittings, the general rule is that when a buyer purchases a property, they receive the land, the permanent physical improvements such as any buildings erected on the land, along with all items that are permanently attached to the improvements or buildings that are erected on the land. This includes all upgrades, fixtures and fittings of a permanent nature. This is why it is to define what is regarded as permanent nature. According to Goslett, there are three aspects to consider when defining whether a fixture or fitting is of permanent nature:

• The first aspect to establish is the intended nature and purpose of the item when it was attached. Is the item attached to the land or a structure erected on the land and does this item intend to serve the land on a permanent nature?
• How was the item attached? If the item is attached to the degree that removing it would cause damage to the structure or land that it is attached to, then the item should remained fixed and be considered permanent.
• The owner’s intention when attaching the item should be taken into account. If the intention of the owner was to permanently attach the item, then that should be given consideration.

According to Goslett, if an item is bolted, cemented, sown or planted and has taken root it is generally regarded as permanent. He points out that a contentious issue can arise when it comes to structures such as Wendy houses, pergolas or other similar structures. Goslett says that the seller should provide the buyer with plans if the structures are permanent and will remain on the property. To avoid any confusion or disputes at a later stage, Goslett says that a basic clause regarding the fixtures and fittings should be included in the agreement of sale. The clause should be similar to the following: The property is sold inclusive of all existing fixtures and fittings of a permanent nature, which the seller warrants are his/her exclusive property, fully paid for and in working condition, including but not limited to: the existing garden, trees, shrubs, plants, curtain rails, rods, pelmets, fitted carpets, the light fittings, stove and/or oven, hanging mirrors, towel racks, shelves, as well as special tap fittings, removable kitchen units, tennis court net, fireplace grate/blower, fitted kitchen storage units, awnings, post box, burglar alarm system, doorbell/knocker, the television aerial and accessories (if applicable), pool filter, pump and all cleaning equipment including automatic pool cleaner (whether fixed or movable, if applicable), swimming pool equipment, inner and outer door keys. “The more specific the clause is the better. This is to ensure that nothing is left open to interpretation by either party. Taking the time and effort to include all fixtures when the sale agreement is drafted will help to avoid any frustration that could arise later on,” says Goslett, who notes that while there might be a verbal agreement between the two parties, if the agreement has not been reduced to writing it is very hard to prove anything at a later stage should the need arise. “Before placing their home on the market, a seller needs to carefully consider exactly what they are intending to include in the sale and perhaps remove items before the home is opened to buyers,” says Goslett, “However, if it is not feasible to remove the items beforehand it is imperative that there is an open channel of communication and the seller’s intentions are made clear to buyers from the outset. This will ensure that conflict is avoided by both parties,” he concludes.