WHAT GOES AND WHAT STAYS?
It is not out of the ordinary for a homeowner to install an item that they intend taking with them if they sell the property. Even if the item would traditionally be regarded as a fixture, the seller is within their right to take the item, as long as the buyer is aware of the fact and it has agreed to it in the sales agreement. It is vital that the sales agreement is as detailed as possible and addresses all aspect related to the sale – nothing must be left to interpretation.
Arguments and issues happen when the agreement is vague and does not specifically list the items that are included in the sale of the property. As preparation for selling their home, sellers should compile a list itemising exactly what is sold with the house and what will be removed. This 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. An alternative is for sellers to remove the items from the home before it is listed, to avoid any confusion.
When the buyer purchases a home, they will 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 on the land, which includes all upgrades, along with fixtures and fittings of a permanent nature.
There are three aspects to consider when defining whether a fixture or fitting is of permanent nature:
- The intended purpose or nature of the item when it was attached. Was the item attached to the land or structure erected on the land and was the intention to serve the land on a permanent nature?
- Is the item attached to the degree that removing it would cause damage to the structure or land?
- The owner’s intention when attaching the item should be taken into account. If the intention of the owner was to attach the item permanently, then that should be given consideration.
If an item has been bolted down, cemented to the ground, sown or planted and has taken root, it is regarded as permanent. An ambiguous area that often causes disputes is around structures such as sheds, pergolas or other similar structures. Issues also arise around items that are not fixed but used in conjunction with a fixture such as pool cleaners, garage door remotes and batteries for solar power systems.
A basic clause regarding the fixtures and fittings should be included in the agreement of sale to avoid disputes down the line. 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.
Ideally, the clause needs to be as specific as possible to the transaction to ensure that nothing is misconstrued. While it may seem tedious, including all the relevant details will assist in avoiding misunderstandings. If all aspects of the agreement have not been reduced to writing, it is very hard to prove or disprove anything at a later stage.
It is vital that during the sales process there is an open channel of communication and sellers intentions are made clear to buyers from the start. Communicating and being up front will ensure that conflict is circumvented.