Know what is included and what is excluded in a sale

MANY disagreements between buyers and sellers of 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.

Discussing this recently, Barry Fourie, the national training manager for the Rawson Property Group, said both sellers and buyers needed to clarify in their minds the difference between permanent and non-permanent fixtures.

“Although quite frequently certain sellers break this rule, it is widely accepted, and in fact, 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.

“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 e.g. a valuable teak door or a historic fitted cast iron stove that he intends to take with him,” he said.

“Furthermore, if the removal of a permanent fixture results in some part of the remaining structure being damaged, 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, said Fourie, it would suit the seller to include a number of movable, non-permanent items in the sale for such simple reasons as that he no longer needed them or he was moving to a home too small to accommodate them. The agreement to do this had, on occasions, also led to arguments, especially where several items were concerned.

“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 movables items that the seller will leave behind.

“This is particularly important because if the matter does reach the courts, South African property law almost always relies very heavily on written rather than verbal agreements,” said Fourie.