-Fixtures and Fittings – what goes and what stays?

The question of what items are included in the sale of a property often leads to disputes. Buyers and sellers often have different opinions about which items are actually included in the sale. Then when the buyers take occupation of the property they find that certain items (which they thought were included in the sale) have been removed by the sellers (who were convinced that they were not included in the sale).

This can then become a contentious issue and lead to serious disputes and even legal costs.

Most sale agreements will contain a basic clause stating something like: “The property is sold inclusive of all fixtures and fittings of a permanent nature including, but not limited to,  the following…..” and may then list certain items, which then will at least remove confusion later on about whether the listed items were included in the sale or not.

However, often this list is not comprehensive and the disputes still arise about certain items if they were not specifically listed in the sale agreement.

A few examples of items that can lead to confusion and dispute if they are not specifically dealt with are satellite dishes, blinds, pool equipment, potplants, gas bottles (i.e. for a gas stove), mounted speakers, bar stools etc. And sometimes a seller always intended to remove a specific fixture, for example an old chandelier light fitting which was inherited and has emotional value to him/her. But unless it was agreed that he may remove or replace it, it should remain. These types of scenarios can lead to disputes.

When it comes to fixtures and fittings, the general rule is that when a buyer purchases 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. This includes all upgrades, fixtures and fittings of a permanent nature. This is why it is vital to define what is regarded as permanent nature.

There are three aspects that the courts will consider when defining whether a fixture or fitting is of permanent nature:

  1. The first aspect to establish is the intended nature and purpose of the item when it was attached. Is the item attached to the land or a structure erected on the land and does this item intend to serve the land on a permanent basis?
  2. How was the item attached? If the item is attached to the degree that removing it would cause damage to the structure or land that it is attached to, then the item should remained fixed and be considered permanent.
  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.

So if disputes arise, the courts will pay attention to the above three aspects before deciding whether it was indeed a fixture.

To avoid conflict it is advisable to COMPILE A LIST OF FIXTURES AND FITTINGS (especially those that could lead to disputes) and to specify whether it is included or excluded in the sale of the property. This list can then be signed by the buyer and seller and attached to the Agreement of Sale, thereby clearly indicating what the parties agreed to.