What goes and what stays?
An often contentious issue, the definition of what is regarded as a fixture in the home has caused many a dispute between buyers and sellers during the property sales process. Regional Director and CEO of RE/MAX of Southern Africa, Adrian Goslett, says that to avoid disagreements it is imperative that the sales agreement between the two parties is clear regarding what stays in the home and what will be removed by the seller when they vacate the premises.
“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 been agreed upon in the sales agreement,” Goslett explains. “It is vital that the sales agreement is as detailed as possible and addresses all aspect related to the sale – nothing should be left to interpretation.”
He adds that 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 to be 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,” says Goslett. “An alternative is for sellers to remove the items from the home before it is listed, to avoid any confusion.”
As a general rule 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 that are erected on the land. This includes all upgrades, along with fixtures and fittings of a permanent nature.
Goslett points out that there are three aspects to consider when defining whether a fixture or fitting is of permanent nature:
1. The intended purpose or nature of the item when it was attached. Was the item attached to the land or a structure erected on the land and was the intention to serve the land on a permanent nature?
2. The manner in which the item was attached plays a part. Is the item attached to the degree that removing it would cause damage to the structure or land that it is attached to?
3. 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.
“If an item has been bolted down, cemented to the ground, sown or planted and has taken root it is generally 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 are used in conjunction with a fixture such as pool cleaners, garage door remotes and batteries for solar power systems,” says Goslett.
He adds that 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 can be misconstrued. While it may seem like a tedious exercise, including the relevant details will assist in avoiding conflict,” says Goslett. He adds that there could potentially 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.
“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 avoided by both parties,” Goslett concludes.
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