Navigating the potential minefield of fixtures when selling and purchasing – when is something permanently attached to a property?
When purchasing a residential property, a buyer is entitled (without stating so in the purchase agreement) to receive the property he/she has purchased together with all physical improvements of a permanent nature thereon as well as all items which are permanently attached to the land and/or buildings.
To be considered a permanent fixture, the item must be attached with the intention that it is permanent so as to serve the land and/or buildings indefinitely. If removal of the attached item will cause substantial damage to the land and/or building it is considered a permanent fixture regardless of whether it has been ‘fixed’ or not.
Property law regarding fixtures in South Africa dates back to the Roman Law principle, ‘superficies solo cedit’, which means that what is on the surface yields to the land. In layman’s terms, this translates to ‘whatever is on the land belongs to the owner of the land’.
In South Africa the principle for determining property fixtures was defined in a High Court Appeal Case (Macdonald Ltd v Radin NO and the Potchefstroom Dairies and Industries 1915 AD 454 – Source: http://www.saflii.org/za/cases/ZAGPPHC/2010/221.pdf) which stated that three questions had to be asked in order to define this:
- The fixture must be of such a nature and purpose that it forms part of the property and has been erected permanently, with the removal of the fixture causing damage to the land/property. Examples: a separate garage/store room/laundry/scullery/garden shed with a permanent foundation.
- The fixture must be physically embedded and attached, removal of the fixture would cause damage to the structure or land that it is attached to. Examples: a carport/pergola/outside fire/braai or other similar structures.
- The fixture is intended to belong permanently to the property. Examples: a free standing container home/small timber shed on the property with no foundations in place, pool and garden equipment/internet hardware.
These principals still apply today and the High Court will evaluate these three questions on the facts of each case.
It is therefore vital for both sellers and purchasers to have complete clarity and transparency across the three principals above, prior to selling or purchasing a property and in order to manage their respective expectations.
A thorough understanding of the identity of items a seller wishes to include or exclude when selling a property can often become a source of serious contention, hence the need to list all items included or excluded from the sale of the property.
Aside from considering personal items to be excluded or included in the sale of a property, the following fixtures and fittings are due for consideration when selling or purchasing:
- Swimming pool (pool nets/covers that are attached to the pool exterior/cleaning equipment – nets/brushes)
- Stoves, custom-sized fridge/wine fridge
- Security cameras and auxiliary items
- Garden irrigation equipment/fountains/ornaments/pots
- TV Aerials/satellite dishes
- Internet hardware
- Bespoke items (curtain rails, light fittings, bookcases, mirrors, automated blinds, etc.)
- Carpets (not necessarily fitted)
- Business operating equipment
It is also most important for sellers to note that the purchaser is entitled to all permanent fixtures (attachments) unless these items are specifically listed as exclusions to the sale of the property. Anything can be excluded from the sale if it is specified in writing in the Offer to Purchase Agreement.
So, with this minefield of variables and uncertainties in mind and where there is any complexity or doubt as to what is excluded, we advocate that sellers prepare a detailed, written list of items which are to be included and excluded from the sale prior to listing their property with us and that this list forms part of the sale mandate. We have service providers at our disposal that can do this for you if you feel that it is too daunting. We incorporate the same list in the agreement of sale in order to record the intentions of both parties and to ensure that the seller does not remove items which have been expressly included in the sale. That way, should the seller remove an item listed as an inclusion, the purchaser can then seek redress.
This allows for clarity for both the seller and the purchaser from the outset, with no hidden surprises arising when a sale is concluded.
A transaction always goes smoother when both parties are absolutely clear on what they are selling and what they are purchasing. Documenting a detailed list of the inclusions and exclusions to the sale at the outset will prevent disputes from arising, make the sale process go smoothly and culminate in happy parties at the end of the process.