WENDY KNOWLER | Didn’t that come with the house? The annoyance of fixtures that move

Friends of mine recently bought a home after many years of renting.

The day they moved in, full of excitement, they found wires hanging out of the lounge ceiling where a lovely light fitting had been when they viewed the house.

There’d been no discussion about it, and nothing was noted on the sale agreement – the sellers had just seen fit to take it with them when they packed up and moved on.

“Ag, it’s annoying,” the husband told me, “but I can’t be bothered to fight about it.”

But what’s the legal position when it comes to the removal of such fixtures?

Sellers are compelled to leave the property in the same condition as it was sold, as all the fixtures contributed to the value of the property, says Alicia Heyneke, property law specialist and attorney with Adams and Adams.

“But it’s not always easy to determine which items are considered personal movable property belonging to the seller, and which movable items have been attached to the property to the extent that they can be regarded as forming part of the property itself and therefore included in the sale.

“So, naturally, often buyers and sellers have differing opinions on that.”

A purchaser may have chosen the property in large part because of the built-in gas braai in the backyard, and assumed it would be included in the sale, Heyneke said, but the seller never meant for it to be included and had every intention of taking it along to his next property.

So how does one determine whether something is a fixture?

Here are the criteria, according to Heyneke:

• Is the item capable of becoming part of the property? Take an extractor fan for example. It’s a movable item intended to be attached above the stove, and it becomes part of the property once it has been bolted to the ceiling.

• How is it attached to the property and to what degree? A painting, hung on the wall, can easily be removed and is not considered to be part of the property. A garden fountain, on the other hand, by its sheer weight does become part of the property, especially if it’s cemented at its foundation. In short, take the curtains, not the curtain rods.

• And finally, was it the intention that the item would be permanently attached to the property?

Interestingly, there is no law that defines exactly what items a seller may remove, and which items should stay.

“The best way to avoid such disputes is to ensure that the agreement of sale clearly specifies which items will stay and which items the seller intends removing when vacating the property,” Heyneke says.

“If the agreement does not list the items being excluded from the sale, then the purchaser may rightfully assume that all fixtures of a permanent nature automatically form part of the sale and the purchaser may have a claim against the seller for the wrongful removal of any item.”

Ah but think what that claim would entail in terms of time, money and emotional energy.

Much better to have the “leave or stay” discussion beforehand, and note any special fixture arrangements in the sale agreement.

These things are regarded as fixtures unless agreed otherwise: security cameras and alarm systems; light fittings; irrigation system; water fountains; plants and trees; swimming pool net; brushes and “Kreepy Krauly” type pool cleaners; built-in bars; bookcases and vanities; wooden blinds; curtain rails and rods; bathroom mirrors; towel racks; fitted carpets; ceiling fans; keys and security remotes.

Satellite dishes are apparently a bit of a tricky one, according to Heyneke, so that’s a conversation that should definitely be had.

“It’s bolted to the outside wall, so it is considered part of the property, but a seller might argue that he never intended for the dish to remain and since it is an accessory to the decoder, and can be easily removed without damaging the property, he should be allowed to take it with him,” she says.

Other potential problem items are Wendy houses (how I hate that term!) and pergolas, apparently, and I would add rain tanks to that list.

When I discussed this issue on a radio show recently, a caller said he’d paid a lot of money to install a solar heating system at his home, and since he was unlikely to recoup that in the selling price, he felt entitled to take it with him.

As I told him, he’d be on very shaky ground if he removed that installation. A fixture it most certainly is.

That got me thinking about other South African modern-day must-haves: rain tanks and the many off-the-grid contraptions.

If you include those things in your advert, they have to stay.

It’s a good idea to remove or replace any fixture you really can’t bear to part with before you put your house on the market.

And then hope it doesn’t take too long to sell.

Confession: earlier this year we sold a house and removed a large bathroom mirror when we moved out.

I’ve just called the new owner to apologise and offer her a refund for their replacement mirror.

She laughed graciously and let me off the hook.