Property Fixtures and Fittings: What Goes and What Stays

The general rule for fixtures and fittings is that when a Buyer  purchases a property, they receive the land, the permanent physical  improvements such as any buildings erected on the land, and all items  that are permanently attached to the improvements or buildings that are  erected on the land.

The Offer to Purchase Form, needs to be clear regarding all aspects  relating to the sale of the home as it is not uncommon for a Homeowner  to have installed certain items in their home that they intend to take  with them when they move. Even if the item is regarded as fixture, a  Seller is within their rights to take the item, provided the Buyer is  aware of the fact and it is in agreement.

If the Agreement of Sale excludes any specific item, the Seller is  entitled to remove it, Disagreements occur when the Sale Agreement is  vague, therefore the list should be incorporated into the selling  Mandate so that the Agent can point out to potential Buyers any items  that will be removed by the Seller. i.e. all upgrades, fixtures and  fittings of a permanent nature. Hence the necessity to define what is  regarded as permanent nature.

There are four aspects to consider when defining whether a fixture or fitting is of permanent nature:

1. Establish  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 nature?
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,  the item should remain 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.
4. If an item is bolted, cemented, sown or planted and has taken root, it is generally regarded as permanent.

To avoid any confusion or disputes at a later stage, a basic clause  regarding the fixtures and fittings should be included in the Agreement of  Sale. i.e.

“The property is sold inclusive of all existing fixtures and fittings of a  permanent nature, which the seller warrants are his or 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 or blower,  fitted kitchen storage units, awnings, , burglar alarm system, - 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”.