select
|

What you need to know about fixtures and fittings

It is not uncommon for disputes to arise between a buyer and a seller regarding what is classified as a fixture and fitting and what isn’t, says Adrian Goslett, CEO of RE/MAX of Southern Africa.

“In many cases there are certain items that a seller has installed and would like to remove from the property and take with them when they move,” says Goslett. “Sellers often ask whether they are allowed to do this and the simple answer is yes, provided that both parties are in agreement. Alternatively, if the agreement of sale excludes any specific item, the seller is entitled to remove it.”

He points out that the general rule when it comes to fixtures and fitting is that the when the purchaser buys 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.

Goslett notes that in the instances when disputes do occur it is normally when the agreement of sale is vague and simply states the property is sold ‘as is’ or voetstoots and includes all upgrades, fixtures and fittings of a permanent nature. In cases such as these it is important to determine what is regarded as permanent nature. In order to do this, three questions must be asked, which are:

  1. What is the nature and purpose for which the item was attached?  The item must be attached to the land or the structure erected on the land. It should be of a permanent nature or intended to always serve the land.

  1. How and to which degree was the item attached?  It should be sufficiently attached so as to become part of the land or structure. If removing the item will cause substantial damage to the structure, it should be considered permanent.    
    
  1. What was the intention of the owner when attaching the item? If the intention of the owner was to permanently attach the item, then that should be taken into consideration.

Goslett says that generally if the item is bolted down, cemented, sown or planted and has taken root it normally becomes permanent. He notes that some items such as Wendy Houses and Pergolas or other similar structures can be contentious issues. If they are permanent structures that will remain on the property, plans should be provided by the seller to buyer.

“It is very important that the sale of agreement between the buyer and seller covers all aspects of the transaction to ensure that nothing is to left to interpretation by either party. There are some agreements that do not refer to fixtures and fitting at all, however taking the time and care to ensure proper drafting of your agreement could save you possible frustration later on,” says Goslett.

“Ensure that all aspects and agreements are in writing, do not rely on verbal communications and always create a paper trail.  If a dispute does arise, the court will consider all the surrounding circumstance, facts and even the conduct of the seller. Therefore the seller should always be aware whether or not his action may be creating a certain impression with the purchaser as to whether or not an item is included in the sale.”

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.

He adds that a basic clause regarding the fixtures and fittings should be included in the agreement of sale, otherwise referred to as the offer to purchase. 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, fire place 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.

“It is clear that the list could be endless and it is therefore important for the seller to consider exactly what they are intending to sell. If any items are to be removed by the seller, both parties will need to agree and remove the item from the clause stated in the agreement. Open communication channels and ensuring all items are covered in the agreement will ensure that conflict is avoided by both parties,” Goslett concludes.


  Comment on this Article

  Please login to post comments

Post to my facebook wall
  
2000
Characters remaining


    Latest Property News
    • 19 Jan 2018
      Extending from Randfontein in the west to Roodepoort in the east and including the towns of Krugersdorp and Magaliesburg, the West Rand has a plethora of property available to residents who choose to make this unique area their home.
    • 19 Jan 2018
      When it comes to financial planning, doing the work to ensure you’re prepared for unexpected emergencies is just as important as ticking off your other goals and New Year’s resolutions. The beginning of the year is also the perfect time to review your various insurance policies.
    • 19 Jan 2018
      No surprises at the first Monetary Policy Committee of 2018, as Reserve Bank Governor, Lesetja Kganyago, announced that the interest rates would stay at their current levels.
    • 18 Jan 2018
      The Southern Suburbs make up some of the most popular residential areas in Cape Town, comprising charming groups of suburbs which lie to the south-east of the slopes of Table Mountain. It is seen as the city's most expensive residential neighbourhoods with a choice of various private schools, upmarket eateries, wine estates, beautiful homes and trendy apartments.
    • 18 Jan 2018
      New year, new goals! If you’ve resolved to purchase your first property in 2018, then this 6-step guide from the Rawson Property Group is a must-read. It will help you navigate and simplify what is often be seen as a confusing process of buying your first home – right from the house-hunt to the house-warming.
    • 17 Jan 2018
      While the current property market may still favour buyers, it doesn’t mean that they shouldn’t be well prepared before putting in an offer to purchase.
    • 17 Jan 2018
      Lightstone lists Blair Atholl as the most expensive suburb with an average house price of R11.2 million, followed by Westcliff (R10.5 million), Dunkeld (R9.3 million), Sandhurst (R9.1 million) and Inanda (R7.2 million).
    • 17 Jan 2018
      As it currently stands, there are four main ways in which a home can be bought in South Africa, says Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa, who adds that deciding in which legal entity to purchase the property is not a decision that should be entered into lightly, as each has its pros and cons.
        
    X
    Subscribe to the MyProperty Newsletter

    Name  
    Last Name  
    Email Address  
    Email Frequency
    select
    X
    Share this Page

       
    For Sale Property
    Rental Property
    More Options
    About
    Connect with us
    FEEDBACK