WENDY KNOWLER | What home sellers advertise and what you find aren’t always the same

Never assume the company or person you’re transacting with has the same understanding of the key issues you do.

A classic example is the person who buys a gift and asks the cashier: “Can they bring it back if they don’t like it?”

The cashier says yes, so the customer assumes a refund will be issued should the gift not be a hit. The cashier, meanwhile, means they’ll allow the recipient to exchange the gift or issue them with a credit voucher.

Legally, if you buy a product in a physical store, you have no right to return it at all — unless it develops a defect within six months. I’m mentioning this because we’re in the peak gift-buying season.

There’s a specific form of assumption I want to highlight this week: the mismatched assumptions buyers and sellers make about fixtures in a home.

There is no law that defines exactly what items a seller may remove and which items should stay. For every “easy” way to tell if it’s a fixture, there’s an exception or at least a grey area.

“Everything that would remain if you could pick up the house, pluck the roof off, turn it upside down and give it a bit of a shake, is a fixture and should not be removed,” is one of them. While curtain rails are a fixture, curtains are not — the sellers are entitled to take them. But they are attached to the rails so they wouldn’t “fall out” in that upside-down house test.

Conversely, bar stools are seldom fixed to the floor, but if they are part of a bar set, they could be considered fixtures too, says Tholakele Mrubata, attorney and conveyancer with Norton Rose Fulbright SA.

That’s why it’s so important for the estate agent to ask the seller to draw up a list of features they consider to be fixtures and which they intend to take, she says.

“And if, for example, there’s a particularly expensive or sentimental fixture in the house, such as a light fitting, that they want to take, they should remove and replace it before putting the property on the market.”

Other potential problem items are Wendy houses, pergolas and rain tanks. And I daresay some sellers would want to remove their expensive solar systems too. If you include those things in your advert, they have to stay. But clearly not all sellers see it that way.

It’s important for the estate agent to ask the seller to draw up a list of features they consider to be fixtures and which they intend to take

—  Tholakele Mrubata, attorney and conveyancer

In Craig Rodney’s case, he loved all the bespoke features in the Tokai home he bought recently, but the prime one was a custom-built unit along an entire wall in the living room.

“The listing advertised the house as having ‘custom-built fixtures’ and specified that huge unit, and the Rawson agent stressed it was all included,” he said.

The property was transferred into his name on September 30 and the sellers asked if they could stay for two more weeks because they weren’t ready to move out.

“So I let them stay, and I moved in on October 14.”

He walked into the house with the agent, and they were immediately confronted by that big, blank wall — repainted but in a colour that didn’t match the other walls in the room. And the floor showed very clear signs of the fixture having been removed.

Both were gobsmacked.

Rodney said he’d asked the agent to specify the unit as a fixture in the sale agreement, but the agent said that wasn’t necessary, just as it wasn’t necessary to specify the kitchen cabinets or built-in cupboards in the bedrooms.

“At no point was there ever mention of a side sale for that fixture or that it needed to be excluded from the sale,” the agent told me. “Even after countless messages back and forth discussing other aspects of the sale, it was never mentioned.

“I thought we were on the same page.”

The seller did provide a hint of what was to come, however. “He would have taken the built-in bar fridge and the jacuzzi too, if we hadn’t stopped him,” the agent said.

For Rodney, who paid the asking price for the home, the removal of that unit was a huge loss.

The quote to replace it is R160,000. The agents were sympathetic and did their best to engage the seller, who failed to respond to their emails, ignored WhatsApp messages and mostly avoided their phone calls.

“I did speak to him once,” the agent said. “He said he was entitled to take the unit because it wasn’t attached to the wall and said he’d return it if the buyer paid for it.”

Rodney intends to take legal action.

Mrubata advises buyers and sellers, through their agents, to have in-depth discussions around the property’s fixtures and to specify the fixtures in the agreement.

She said buyers have to the right to be present on the day the sellers vacate the property to ensure fixtures aren’t removed.

If a seller is hell-bent on removing a feature they know to be a fixture and is used to market the home, there’s not a lot that can be done to thwart them.

In this case, the sellers reportedly moved out before an arranged “walk-through” with the agent.

I will be following the legal proceedings with much interest.

• GET IN TOUCH: You can contact Wendy Knowler for advice with your consumer issues via e-mail: consumer@knowler.co.za or on Twitter: @wendyknowler.