- The basics principals of determining a fixture
A common term of any property sale contract is the one dealing with fixtures and fittings. The clause will read something like this:
The Property is sold inclusive of all existing FIXTURES AND FITTINGS of a permanent nature which the Seller warrants are his exclusive property and fully paid for. These together with the following movable items which are separately included, are sold voetstoots: Including but not limited to:- Stove/oven _______________________________________ (make) in working order, TV aerials, DSTV dish and mount, wall to wall carpets, curtain rails, light fittings, built-in cupboards, kitchen units, keys and remotes, municipal bins, pool pump and equipment and gas bottles for gas installations.
It is quite obvious that items such as all buildings and outbuildings, walls, gates, driveways, etc., are fixtures and go with the property. Problems sometimes arise, however, where the nature of an object is not that easy to establish. Do television aerials, curtain rails, loose water features and the like constitute fixtures or not? These are often the subject of dispute between the parties after a sale, especially where the Seller has removed items the Buyer considers part of the property. It is important to know how to determine what a fixture is and to also know how to anticipate and prevent later disputes between parties.
- The legal definition of fixtures and fittings
It would seem obvious that anything attached or affixed to the property would automatically constitute a fixture or fitting and that all loose items that are movable are not included in the sale unless otherwise agreed. To a large extent, this is true but there is a slight distinction in law as to how to define fixtures and it is essential to know this as it leads to various exceptions. The ‘threefold test’ was set out in a Supreme Court Case as follows:
- The nature of the particular article;
- The degree and manner of its annexation; and
- The intention of the person annexing it
The object must, by nature, be capable of becoming part of the property itself and have the character of belonging essentially to immovable property. There must be an effective attachment, either by sheer weight or by a physical connection, and there must be an intention that it be a permanent feature of the property. The key question here to ask is whether it is intended to be permanently annexed to the specific property or not. This is the fundamental principle to apply in each case to determine if something is a fixture or fitting or not.
- How the principle is applied in practice
All essential items which make a home what it is are fittings and belong to the property as permanent fixtures. This means all wiring, for example, which service any plug points, light fittings, or other similar connections is part of the property. If a previous owner has taken an extension wire along a skirting board from an original plug point to service another plug point and has screwed into the skirting board on the opposite side of the room, the whole apparatus becomes part of the property and may not be removed.
It can therefore be argued that as a stove connection is part of fitted wiring, the stove itself had to be considered a fitting – this decision has only ever been applied in “Gauteng” but in KwaZulu Natal, for example, a Seller has always been allowed to remove his stove.
This case applies too strongly the principle that anything largely used in any home and generally popular must be regarded as a permanent feature and be provided to the new buyer. If this is true then other items such as fridges, microwave ovens, washing machines, and other similar appliances logically also become permanent fixtures.
Ultimately it is always a sound rule to regard most things bolted, screwed in, nailed, hooked, or otherwise attached to the building or features of the property as fixtures and fittings which cannot be removed.
(a note on stoves… in Gauteng, a stove is considered a fixture – however, a Seller has the right to remove an expensive stove and replace it PROVIDED that it is stipulated in the contract. If the purchase price is presumed to be so because of, for example, a Smeg gas stove valued at R50k, then make sure you specify the type, make, and model of the stove as often these are removed and replaced with much cheaper stoves – ideally get your Seller to replace these items before putting the house on the market – same applies to light fittings, where often a property is purchased with ‘stunning’ light fittings, only for the Purchaser to realise afterwards that they were never part of the sale).
- Specific exceptions: Movables and immovable
If the test was simply whether an item was affixed to the property or not, it would be easy to settle disputes between Sellers and Buyers. Remember, however, that the basic test is whether the object is intended to be permanently attached to the property or not. The principle leads to certain exceptions and it is very important to know how to determine these in each particular case. The method to determine such matters is as follows:
If what was formerly movables are joined to buildings not for temporary but for perpetual use, whether they are beams or columns or marble pieces, they begin to be part of the building, and thus to be immovable.
…….. these become permanent fixtures.
There are a number of objects, which, by nature, are movables but which have the essence of permanent features and which may not be removed by the Seller on the transfer of the property.
Applying the above principle, the test here is simply to ask if the movable is specifically intended to be of permanent service to the property or not. Under this heading, all accessories to actual fixtures and fittings, which are essential to the make-up of the object as a whole, belong to it and are part of the property. Specific examples are:
- Bar Stools
Where a bar has been built into a lounge or some other part of the property and it includes certain loose bar stools which are an integral part of the structure being made, for example, of the same type of wood as the bar counter, these become part of the bar and are considered as fixtures. They are considered as part of the unit as a whole because they were intended to be of permanent service to it and necessary for its use and exploitation.
- Curtain Rails
Where brackets belonging to a curtain rail structure have been affixed to the wall, the rails, as well as any rings, as well as any rings become part of the whole fixture as they are essential accessories without which the brackets serve no purpose. The whole structure must remain.
- Swimming Pool Nets
Any net which is specially designed to cover the actual pool on the premises and is held in place by hooks that have been affixed to the paving surrounding the pool becomes part of the structure. A loose net, which can cover any average pool, cannot be regarded as a permanent feature.
- Fitted Carpets
All carpets glued to the floor or otherwise actually affixed to it are permanent features. What of loose carpet which has been specifically cut to be a fitted carpet, exactly covering the floor throughout the room? Even though it is not stuck down to the floor it must be regarded as a fixture because it is specifically intended to serve that particular room and no other. A regular carpet, however, that almost covers the whole floor is not a fixture as it can be used in any suitable room elsewhere.
Other similar items, such as the average lampshade in any room, will also be regarded as permanent features unless, for example, the lampshade matches the curtains exactly and is part of the décor the Seller will obviously want to remove. Prefab units, Zozo huts, and Wendy houses are often used these days as servants’ quarters and must in such cases be considered fixtures.
There are other movable items that are also to be included here simply because they are essential to make something immovable function which cannot be operated unless the accessories are handed over to the new Buyer. The principle again applies that items that form a unit of various components must remain in their entirety. Examples are:
A Seller is obliged to hand over all keys which are required to make any of the locks on the premises work. If he doesn’t have some of them, he will be required to get duplicates made. This is one of the exceptions to a general principle that a Seller is not obliged to deliver things that don’t exist. For example, if a swimming pool is only half completed, a Seller is not obliged to finish it (unless otherwise agreed in the contract). Anything which is intended to function, however, must be accompanied by whatever movables are needed to make it operate.
- Water Features / Pools
Any special feature, such as a water feature in a home or garden, must include all movables which are needed to make it work properly. A loose triton placed above a pipe through which water flows is such a fixture if the water thereafter flows through the trumpet he is blowing into a pool below. Anything which constitutes part of the functioning unit must remain. A Kreepy Crawly unit will not be part of a swimming pool, however, unless it is either part of a specifically designed pool feature or is expressly included in the contract. A pool can be cleaned by other means.
- Light Fittings
All plug fittings, light fittings, light bulbs, and fluorescent tubes are fixtures because the lights or other electrical objects cannot function without them.
- Immovables that are not permanent fixtures
While some movables are fixtures, many immovables are paradoxically not under the principle of what is intended to be a permanent part of the property. Such immovables can be defined as anything which is not of a permanent nature that will not damage the structure if it removed.
A typical example here is the DSTV dish and bracket. The bracket is affixed to a wall and so becomes a fixture or fitting. The dish, however, can be comfortably removed without the bracket or the wall itself being damaged. It dish is obviously not intended to be a permanent feature as the owner will wish to remove it with his decoder when he leaves. In this case, the movable DSTV decoder, which is being removed cannot function without the accessory, namely the dish. Unless the contract stipulates that the DSTV dis is to remain, the Seller is at liberty to take the dish with him when he vacates.
What if a normal TV aerial, however? Here the answer is not so easy to give because the average TV will operate off any aerial. If the principles as discussed above apply here, a TV aerial will be a permanent fixture because a vast majority of normal homes in SA have them and the popularity of TV generally implies that a Buyer will expect to find an aerial on his property. The wisdom of this reasoning has already been questioned and that it is implied that a normal aerial cannot automatically be said to be a permanent fixture. It is true that it is usually affixed in a more deliberate manner than a DSTV dish.
There is only one safe recourse here – you must deal with the TV aerial on any property in your contact and either specifically include or exclude it. The same applies to a security system control unit which the Seller may think he is entitled to unplug and remove on a vacation of the property.
Another example of a fixed feature that is obviously not intended to be a permanent feature is a signpost, plaque, or other forms of decoration with a family inscription or motif such as “welcome to the home of John and Joan Smith”. In such cases, the Seller will be entitled to remove them if they do not damage the structure. If, after unscrewing a plaque or removing a signpost, there are holes or other eyesores, the Seller is entitled to simply fill them in and restore the wall or ground (as the case may be) to its original state.
- Fixture, the Agent, and the Buyer
There is one simple remedy to any confusion about everything that has thus far been said. Deal with any uncertain or specific objects in your sale contract. Items that can be added to the printed section of the contract can include: cycads, koi fish and number, generator, but be careful not to include too many items that can be misleading if not specified and then excluded when concluding the sale. Rather use the contract and handwrite specific items. It is important to protect the Buyer at this point as there are many couldn’t-care-less Sellers out there who will summarily remove everything they want to take with them when leaving the property. All items that could be disputed over should be specifically mentioned in the contract so that the Buyer does not find himself in an unfortunate legal wrangle after taking occupation.
It is also important to delete any items specified in the printed section that are not applicable to the sale, for example, fitted carpets when the property only has tiled floors. Be alert and check your contract reads according to the specific fixtures and fittings within the property.
In suitable cases, the estate agent’s mandate should make provision for the basic items that will go with the property so that there will be no dispute later. Your potential Buyer, when viewing the property, will presume that such items are included in the purchase price. As far as possible you need to protect the Buyer as, in so doing, you are actually protecting yourself from any unpleasant comebacks later.