If the removal of a permanent fixture results in some part of the remaining structure being damaged, as it usually does, it must be provided for in the contract that the repairs have to be done at the seller’s expense prior to transfer.
MANY disagreements between buyers and sellers regarding immovable property come about because of a misunderstanding as to what the seller may remove when vacating the property and what has to remain there.
This is according to Barry Fourie, National Training Manager for the Rawson Property Group, who says both sellers and buyers need to clarify in their minds the difference between permanent and non-permanent fixtures.
He says although quite frequently certain sellers break this rule, it is widely accepted and stipulated in South African law that all permanent fixtures are included in the sale of a property and may not be removed by the seller. Any exceptions to this rule have to be put in writing.
Fourie says the simplest way to determine whether an item is a permanent or a temporary fixture is to imagine that the house has been turned upside down; what would then fall off and what would then remain in place?
“Even this simple test, however, may not be conclusive and it is therefore advisable to list the permanent fixtures the seller intends to leave behind and those few, for example a valuable teak door or a historic fitted cast iron stove, which he intends to take with him.”
Furthermore, Fourie says if the removal of a permanent fixture results in some part of the remaining structure being damaged, as it usually does, it must be provided for in the contract that the repairs have to be done at the seller’s expense prior to transfer.
In certain sales, he says it will suit the seller to include a number of movable, non-permanent items in the sale for such simple reasons as that he no longer needs them or he is moving to a home too small to accommodate them.
The agreement to do this has, on occasions, also led to arguments, especially where several items are concerned.
Fourie says the golden rule therefore, even though it may be fairly tedious, is to leave nothing open to doubt or misinterpretation and record all permanent fixtures included or excluded from the sale in the contract, as well as any movable items that the seller will leave behind.
This is particularly important because if the matter does reach the courts, he says South African property law almost always relies heavily on written rather than verbal agreements. -Property24.com