The age old question surrounding fixtures and fittings: What stays and what goes?
When selling their properties, sellers are not always aware of the rules around fixtures and fittings and what should stay and what may be removed.
The “golden” rule in South African property law is that everything built on or attaching to the land, forms part of the land. The rule aims to protect land ownership and dates back to the Roman Law principle, superficies solo cedit, meaning that what is on the surface yields to the land. That means whatever is on the land, belongs to the owner of the land.
Unfortunately, there are many instances where a property is sold without any reference to fixtures and fittings. The general rule is that when a buyer purchases a property and becomes the owner of it, the permanent physical improvements such as any buildings erected on the land, along with all items that are permanently attached to the improvements or buildings are purchased as well. This includes (but is not limited to) upgrades and fixtures and fittings of a permanent nature. It is therefore important to define what is regarded as “permanent nature”.
When trying to establish whether a fixture or fitting is of a permanent nature, the following should be taken into consideration:
- The nature of the item. Is its intended purpose to serve the land permanently?
- The manner and degree of the attachment of the item. Can the item be removed without causing damage to the structure or land to which it is attached? If not, the item should not be removed and should be considered as permanent.
- The intention of the owner when attaching the item. If the intention of the owner was to attach the item permanently, then that should be given consideration.
A seller should therefore prepare a list itemising what is to be included in the sale of the house or flat prior to listing the property with an agent and the property being viewed by potential buyers. There may also need to be an agreement in regard to replacing some of the items. This too should be included in the agreement.
Fittings and fixtures that the seller wishes to remove must specifically be stipulated in the agreement of sale between the buyer and seller. Even if the item is regarded as a fixture, a seller is within his rights to remove the item, provided the buyer is aware of the fact, and agrees, normally with the requirement that the seller make good any damage which may be caused by its removal.
For more information, please contact our Leanne Williams at lwilliams@bissets.com or call our offices on 021 441 9800.
Leanne Williams | Associate
Areas of Expertise: Conveyancing | Property Law
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)