Avoid unpleasant drama over fixtures
| Buyers, sellers and agents need to be aware of what is
legally included and excluded from their sale.
Most experienced real estate agents have horror stories about "fixtures," which the seller removed but the buyer thought were included in the sale.
To illustrate, I remember buying a house in Newlands and was furious to discover that the seller had replaced a beautiful ornate door knocker with a small cheap version, fortunately, a phone call to the estate agent resolved the problem, the seller sheepishly restored the knocker with the original but not before I threatened everyone with sleepless nights!
Most home buyers and sellers, and even their estate agents, often do not understand the simple law of fixtures.
A "fixture" is moveable personal property, which, by means of bolts, nails, screws, cement, glue, or other attachment method, has been converted to real property. Clearly, that door knocker had been converted from personal property to real property because of its permanent attachment to the structure. Nothing was said in the sales contract about its exclusion from the sale.
A more troublesome example can be window coverings such as blinds and curtains. Suppose a house has beautiful curtains and attached wood window blinds. Those curtains hang by hooks from a rod that is screwed into the wall. While the curtains are personal property because they can be easily removed without damage, the curtain rails and or rods are fixtures included in the home sale. The wood window blinds, if permanently attached to the structure, are also considered fixtures, which are included in the home sale.
But the printed sales contract can change the result. A well written offer to purchase contract should specify or detail such coverings as included in the sales price (unless otherwise excluded).
IF YOU DON'T WANT IT INCLUDED REMOVE IT
It may be practical for a seller to put a notice on a fixture saying not included in sale and thus to clearly exclude it from the sale and this is not commonly done. A better approach for home sellers is to remove the item before marketing the property. Removing the door knocker and installing a tasteful replacement would be a better idea. It is fundamentally unfair and unreasonable to present a property with lovely trimmings only to try strip it bare after the sale and replace quality items with cheaper alternatives.
OFTEN NOT A CLEAR CUT ISSUE
I heard of an instance where a property with built in bar had been sold and the bar stools had been taken by the buyer. This would not normally be an issue but the bar stools were a particular hand-carved design that matched the design of the bar. In the dispute that followed it was resolved that the stools were indeed fixtures as they were an integral part of the bar.
Plants and trees growing in the ground are considered to be fixtures because they are permanently attached to the land, however plants in pots are not considered fixtures and the seller may remove them.
AVOID TROUBLE WITH A WELL-DRAFTED OFFER TO PURCHASE CONTRACT.
When a home buyer identifies non-fixture items, such as pot plants or pool equipment, which the buyer wants included in the sale price, the buyer should itemise that personal property in the sales contract. Similarly, if the seller wants to exclude any fixtures that are attached to the property, those items must also be itemised otherwise they are automatically included in the sale.
Troublesome items to consider include: track lighting, fireplace inserts such as grates, solar systems, built-in appliances, shutters, window coverings, screens, awnings, non fitted carpets, coverings, TV aerials and satellite dish, telephone and wiring, adsl or wireless routers, air conditioners, pool equipment, water purifiers, security systems, keys to all locks, garage door openers and remote controls, mailbox, and even the council garbage bin which we all had to pay R350-00 for!
RULES IN A FIXTURE DISPUTE
1. ATTACHMENT. The most important fixture rule is the method of attachment. If the item is permanently attached to the structure, it is legally considered to be a fixture, which is included in the home's sales price.
However, if an item can be removed without damage to the structure, such as curtains, it is not a fixture. Examples include unscrewing light bulbs and unplugging a refrigerator because both are personal property not permanently attached to the building.
The item's weight is immaterial. To illustrate, an aboveground jacuzzi is removable personal property unless it is built in.
2. INTENTION. If the written sales contract cannot be used to obtain clarity the intent of the buyer and seller becomes critical.
The flyer or ad can be valuable here. For example, when the newspaper ad specifies a private garden with Jacuzzi that implies the seller intends to include the jacuzzi and the buyer can rely on that statement. Or a description of the easy to maintain swimming pool can be interpreted to mean the seller plans to include the pool cover and Kreepy!
3. INTEGRATION TO PROPERTY. When personal property is built into a home, it indicates it has become a fixture, which is included in the sales price. The bar stools I mentioned would serve as a good example here!
4. AGREEMENT. A written contract that lists a specific item, whether it is a fixture or personal property, usually prevails to make it included in the sales price. If in doubt, buyers should list any questionable items.
This is clearly an area where many disputes can easily arise and cause ill feeling. I know of many incidents where properties that have been sold for a great deal of money turn into an unpleasant drama over relatively inexpensive fixtures. People can be unbelievably unreasonable, so be warned make every effort to be clear in writing!
Article by: Andre de Villiers - www.iagent.co.za