Dealing with fixtures and fittings in a property sale agreement

An aspect which often causes confusion and dispute between sellers and buyers, is fixtures and fittings and how these should be dealt with in a property sale agreement.

Although sellers and purchasers generally take time to list items to be excluded or included in the purchase price, omissions and misunderstandings can occur. This can result in lengthy disputes, often well after transfer has taken place.

Fittings are usually movable items such as garden decor, decorative mirrors and shelving which will not form part of the purchase price. The buyer and seller can, however, agree for certain items to remain which should then be recorded in the Offer to Purchase.

Fixtures on the other hand are of a more permanent nature. The general rule is that when purchasing a property, the purchaser is entitled to receive the land together with the permanent physical improvements thereon (such as newly erected carports) along with all items which are permanently attached to the land and/or buildings (such as large Jo-Jo tanks or decking over a lawn).

The item must be attached with the intention that it is permanent. If removal will cause substantial damage it also points towards it being a permanent fixture. The intention of the owners when it was attached will also be considered.

Best practice to avoid disputes, is for the seller to stipulate which items will remain and which will be removed and for this to form part of the agent's mandate as well as the eventual sale agreement.

By way of example, a chandelier and fixed bathroom mirrors would be considered fixtures. If there is no agreement in place and the seller decides to remove these, then the buyer can insist that each item either remain on the property or be replaced by an item of similar value. Failing this, the buyer can seek legal recourse against the seller.

Sellers should therefore be aware of the rights of purchasers in relation to fixtures. Verbal agreements should be avoided as far as possible. Rather follow the best practice to ensure it is recorded in writing.

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