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Send  Share  RSS  Twitter  18 May 2017

PROPERTY: Fixtures and Fitting in Property Transactions Explained

 





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PROPERTY owners often add special elements to their homes, sometimes even inherited items that have special meaning. This could be an antique dresser that is built into the kitchen, a bar counter, an old fireplace or even a special chandelier or hanging mirror in a bathroom. Other items could include the irrigation system or even certain plants.

When it comes to time to sell, sellers are not always aware of the rules around fixtures and fittings and what stays and what goes, says Gerhard van der Linde, managing director for Seeff Pretoria East. It is easy to assume that it will be in order to move something or to just make mention thereof in passing.

The golden rule of property law in South Africa according to STBB Attorneys, is that everything built on or attached 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’, which means that what is on the surface yields to the land. That means whatever is on the land, belongs to the owner of the land.

Van der Linde says that it is therefore vital that sellers are not just aware of this, but any such items that the seller may wish to remove must be specifically stipulated in the agreement between the buyer and seller. There may also need to be an agreement in regard to replacing some of the items and this too should be included in the agreement.

While certain items could for be easily removed, others such as a light fitting, would certainly need to be replaced and, he says, the buyer will want to know exactly what the replacement will be in terms of appearance and quality especially if it pertains to a feature room, such as a formal lounge.

Similarly, removing a dresser that forms part of a kitchen, could leave a gaping hole and notably alter the appearance of the kitchen. The same can be said of an irrigation system, says van der Linde. Many modern homes also have special window dressings with fixtures such as ‘American’ shutters, wooden blinds or special wooden rods. If these are not being sold as part of the home, then it is vital for it to be stipulated as such and for the seller to be upfront in terms of what, if any, will replace the particular items.

There is for example generally an expectation that the windows will have curtain rails. If there are blinds, it may mean that the seller will need to have these especially fitted. On the other hand, the new buyer may decide to install special rods and might be quite happy for the seller not to put up new rails.

Van der Linde points out that there are unfortunately many instances where the property is sold without any specific reference to fixtures. As a general guideline, the following should be taken into account. Firstly, whether the fixture is of a permanent nature and secondly, whether the removal will cause damage. Lastly, consideration should be given to the intention of the seller when the fixture was attached.

While removing and replacing a light fitting may seem easy enough, when you extend that to an irrigation system, it might become more problematic and he therefore says that it is vital that this be dealt with upfront. A skilled agent should also ensure that this is discussed and documented upfront in the mandate agreement as well.

My recommendation, concludes van der Linde, is always for a seller to remove and replace whatever fittings that will not be included in the sale before commencing with the marketing.

Buyers tend to negotiate their offers at much lower values when they are informed that some of the items will not be included, and will be removed and replaced by the seller. These can often be replaced by the seller before the marketing commences at a cost much lower than what a buyer will potentially reduce his offer amount by.


 
 
 
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