Fixtures And Fittings In Sale Agreements
Since the commencement of the Consumer Protection Act, it has become crucial for home sellers and estate agents to be specific, clear and honest when selling property. The Act provides that there should be no ambiguity or uncertainty when goods or services, including property, are advertised or promoted. Considering the abovementioned, attention should specifically be given to the issue of fixtures and fittings.
When a purchaser buys property, he legally acquires the land together with all permanent improvements on the land. Permanent improvements include not only the physical structure but also items, which are permanently attached to the structure. These items are commonly known as fixtures and fittings. In some instances, it can easily be determined whether items in the house are permanent fixtures. However, there are some items on which the law is less clear on which may lead to a dispute between the seller and purchaser.
The legal test for determining whether an item is permanently attached to property involves the consideration of three factors:
(a) the nature and purpose of the attachment -the attachment should be of a permanent nature and be of advantage to the property indefinitely;
(b) the manner of attachment – the attachment should be sufficiently attached so as to become part of the property and should not be capable of being easily removed;
(c) the intention of the owner at the time of the attachment of the item to the property – this is a subjective test and determines that the owner should have had the intention for the item to become a permanent fixture when he attached it to the property.
The issue of fixtures and fittings can easily cause uncertainty or ambiguity in sale agreements. When confronted with an ambiguity the law determines that the ambiguity should be interpreted against the party who drafted the sale agreement, which is usually the estate agent on behalf of the seller. Therefore, from a practical point of view and to avoid uncertainty, the seller and estate agent should always ensure to include a proper clause in the sale agreement relating to the fixtures and fittings. Practically this entails the formulation of an inventory stating which items are included with the sale and what items will be removed when the seller vacates the property.
The sale agreement must cover all aspects of the sale of the property and nothing should be left open for interpretation by the parties. The parties should further not rely on verbal communications. The whole of the agreement, including reference to the fixtures and fittings, must be reduced to writing. Sellers are strongly advised to remove all fixtures not to be included in the sale before the property is listed by the estate agent.
DANIËL VAN ZYL
ATTORNEY & CONVEYANCER AT VAN ZYL KRUGER INC.