While sellers and purchasers sometimes take time to accurately list the items that are excluded or included when a property sale agreement is concluded, one often finds that this detail is lacking. It results in never-ending disputes, long after transfer.
It is fairly easy to avoid most of these disagreements by keeping the general rule in mind. This provides that when a purchaser purchases a property, he or she is entitled to receive the land together with the permanent physical improvements thereon (such as newly erected carports) along with all items which are permanently attached to the land and/or buildings (such as large Jo-Jo tanks or decking over a lawn).
When is something ‘permanently attached to a property? To answer this question, our law looks at the following:
What is the nature of the item and purpose for which it was attached? To be considered a permanent fixture, the item must be attached with the intention that it is permanent, to serve the land indefinitely;
If removal of the item/attachment will cause substantial damage to the land/structure, it points towards the conclusion that it is a permanent fixture; and
What was the intention of the owner when the item was attached?
It is important that sellers prepare a list of items which are to be included in the sale, prior to listing the property with an estate agent. It is encouraged that this list form part of the seller’s mandate with the agent in order to allow the agent the opportunity to point out any items which are to be removed by the seller prior to registration of transfer. Alternatively, the list can be incorporated in the sale agreement in order to record the true intention of both parties.
By way of an example: If X sells his property to Y and later decides that he will be removing the fixed chandelier in the living room as well as the fixed bathroom mirrors before he moves out, then absent any agreement in respect of these, Y can insist that each item either remain on the property or be replaced by an item of similar value. Should X refuse, Y can seek legal recourse against X.
It is therefore important that a seller familiarises himself/herself with the rights of purchasers in relation to the above and ensure that he or she only remove items which have been expressly excluded from the sale. Verbal agreements to this effect need to be avoided as far as possible.
For more information, contact us on 041 363 6044 or email us at info@kaplans.co.za.
