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 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, that services 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 he has screwed it into the skirting board on the opposite side of the room, the whole apparatus becomes part of the property and may not be removed.
In a well-known case, Falch v Wessels 1983(4) SA 172 (T), it was decided that a stove was intended to be a permanent feature in a home. The case, applying the threefold principle mentioned above, also added the further consideration that anything intended to be part of any normal home must be regarded as part of its permanent fixtures. As a stove connection was part of the fitting wiring, it was argued that the stove itself had to be considered a fitting.
The decision, taken in the Transvaal Provincial Division, has never been applied elsewhere in South Africa and in Kwazulu-Natal, for example, a Seller has always been allowed to remove his stove. In my view, the 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 or Lessee. If this is true, then other items such as fridges, microwave ovens, washing machines, tumble dryers and other similar appliances logically also become permanent features.
Ultimately it is always a sound rule to regard most things bolted, screwed in, nailed, hooked or otherwise attached to the buildings or features of the property, as fixtures and fittings which cannot be removed.
2. Specific Exceptions: Movables and Immovables
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. This in principle leads to certain exceptions and it is very important to know how to determine these in each particular case. One of the great legal scholars of Roman-Dutch law, Johar Voet, many centuries ago stated the method of determining such matters as follows:
If, what were 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.
Movables that Become Permanent Fixtures
There are a number of objects which, by nature, are movables but which have the character of permanent features and which may not be removed by the Seller on vacation of the property. Applying the above principle, the test here is simply to ask whether 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:
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 structure and are considered as fixtures. In Senekal v Roodt 1983(2) St 602(I) it was decided that such bar stools were a 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 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 especially designed to cover the actual pool on the premises and is held in place by a series of hooks which have been affixed to the paving surrounding the pool, becomes a part of the structure. A loose net, which can cover any average pool, cannot be regarded as a permanent feature but any specially designed net, shaped to cover the pool and kept in place by fixed hooks, is intended to be a permanent part of the property.
- Fitted Carpets All carpets glued to the floor or otherwise actually affixed to it, are permanent features. What of a loose carpet which has been especially 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 service that particular room and no other. A rectangular 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 features unless, for example, the lampshade matches the curtains exactly and is part of a 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 movables which 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 applies that items which form a unit of various components remain in their entirety.
Examples include:
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 and the Buyer requires 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 complete, 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. The Seller should disclose to the Buyer that the keys are missing and get the Buyer to agree that he does not need to replace them.
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 a functioning unit must remain. A Kreepy Krawly unit will not be a part of the fixtures of a swimming pool, however, unless it is either a part of a specifically designed pool feature or has been expressly included in the contract. A pool can be cleaned by other means.
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 is removed.
A typical example here is an alarm system. It is affixed to the property and so apparently becomes a fixture or fitting. Yet it can be comfortably removed without the structure on the property being damaged. It is obviously not intended to be a permanent feature as the owner will wish to cancel the contract when he leaves. In this case the contract which is being cancelled means that the alarm cannot function without the necessary armed response contract in place. The exact reverse applies here to, say, the principle applied to keys above. There the movable accessory must remain to make the immovable object work, here the contract must remain to make the immovable object operate.
Another example of a fixed feature that is obviously not intended to be a permanent feature is a signpost, plaque or other form 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 may fill them in and restore the wall or ground (as the case may be) to its original state.
3. Fixtures, 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. Every contract, in its printed section, should in my view make specific mention of any eve-level oven, hob, kitchen stove, fitted carpets, curtain fittings, keys and the like, as objects that have to remain behind unless the parties agree otherwise. It is essential to protect the Buyer at this point as there are many “couldn't-care-less” Sellers out there who will summarily remove anything 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.
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 and Seller to protect all parties from any unpleasant comebacks later.
CREDIT:
Property Law Publications
John Gilchrist
082 904 1300
