'Keep moveable transactions separate from property purchase'

Sometimes, a seller will include a number of moveables, furniture, curtains or white goods, into a sale agreement as part of the purchase price, to "sweeten the deal" for the purchaser, but this can really complicate matters with regards to money exchanged and what the actual items being sold are.

Firstly, says Lanice Steward, managing director of Knight Frank Anne Porter, if there is any material value to the items, they should be excluded from the agreement of sale. A private sale of these items should rather be arranged between the purchaser and the seller, as no transfer duty is payable on moveable items.

If the price of these is confused and added to the selling price of the home, the transfer duty would end up being more.

But, whether it's done privately or part of the agreement, it is important to identify the items, i.e. one white Defy 12kg top loader washing machine. Be as specific as possible and make use of digital photography to keep records of the items that are meant to remain in the house.

"This may seem over-the-top but we have come across cases where certain kitchen equipment was meant to be included and when the buyer moved in, found that, yes, the stove, microwave, fridge and washing machine were all there, but they had been substituted for a cheaper brand that the buyers would not have chosen for themselves," she said. "There have also been instances where patio furniture was included and instead of the teak table and chairs the buyer had wanted, found that plastic furniture had been substituted."

If the buyer enters into a separate private deal, it is then kept apart and there usually will be no discrepancy as to which goods were meant to be left behind, as this sort of deal means handing over cash and seeing the goods handed over as payment is made, she said.

A case mentioned in a recent Smith Tabata Buchanan Boyes legal update, warns many about this sort of situation. In this particular case, Steenkamp NO and Others v C.A du Toit Central (Pty) Ltd, the property was a guesthouse where the seller presented a list of items that was included in the sale and the buyer did not sign it initially, saying that the price agreed on in the offer to purchase was for all the items in the apartment on the date of the agreement being signed.

He later signed the list, again saying that he presumed the list included all the items agreed on when the sale took place and he could not go and check as he was in Bloemfontein and the apartment was in Mossel Bay.

A little while later Mrs Steenkamp removed certain items that were meant to remain and on finding out the buyer instituted action against the Steenkamps for breach of contract, and the court subsequently found in the buyer's favour.

"A sale of a property can end up being complicated enough without adding lists of moveable property," said Steward. "It is always best, and would have been in the case above, to keep each transaction separate and clear, as well as in writing. All of the legal costs and the time wasted could have been avoided had this been done."

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