By Sloan Wilson

Janaury 2019

 

A buyer who purchases immovable property legally acquires the land together with all permanent improvements on the land. Permanent improvements include not only the physical structure but also items, which are permanently attached to the structure. These items are commonly known as fixtures and fittings. If the item forms an essential part of the property then the item is a permanent fixture. Roof tiles are an example of such an item. Furthermore if an item has been physically integrated into the property or cannot be removed without damaging or destroying the item or the property, then the item is a permanent fixture – examples are water pipes, window frames and doorframes. It is not necessary to stipulate in the deed of sale that such items are included in the sale. They are clearly permanent fixtures and are accordingly included by law. Examples of other items, which are regarded in law as being permanent fixtures, are light fittings, built-in cupboards, fitted carpets, built-in cabinets and the like.

Although the law is clear on the question of whether the abovementioned items are permanent fixtures there are other items involved in the sale of immovable property on which the law is less clear with regards to whether or not such items are permanent fixtures. Further problems are created in practise due to the fact that sellers and buyers are understandably not familiar with the law relating to fixtures and fittings. Disputes accordingly often arise between sellers and purchasers regarding whether or not an item constitutes a permanent fixture and is accordingly included in the sale.

The legal test for determining whether an item is permanently attached to a property (and is therefore a fixture or fitting and included in the purchase price) involves the consideration of the following three things: (a) the nature of the attachment, (b) the purpose of the attachment and (c) the manner of attachment i.e. the way in which it has been attached to the property. Unfortunately a consideration of the abovementioned three factors (nature, purpose and manner of attachment) often does not provide a conclusive answer as to whether the item is a permanent fixture. When this is the case a fourth factor must be looked at, namely the intention of the owner at the time of the attachment of the item to the property. In other words, did the owner intend the item to become a permanent fixture when he attached it? This is obviously a subjective test and it is often difficult to determine the seller’s intention.

From a practical point of view and in order to avoid confusion and disputes it is advisable for the seller, purchaser and agent to apply their minds to the issue of fixtures and fittings prior to the signing of the deed of sale. If the seller wishes to specifically exclude an item which may be regarded as a fixture he should advise the agent and the purchaser of this fact. Similarly if the purchaser is uncertain whether an item constitutes a fixture he should discuss it with the seller. Furthermore if there is any uncertainty regarding whether or not an item constitutes a fixture then the parties should discuss the issue and reach agreement on this point. The relevant clause in the deed of sale should then clearly stipulate those items which had been included in the sale and those which have been excluded. Examples of items which are often the subject of disputes between sellers and purchasers are: pool cleaning equipment, aboveground sprinkler systems, TV antenna, satellite dishes, alarm systems, cabinets which appear to be built in (but may not be), air conditioners etc.