Fighting Over Fixtures And Fittings - How To Guard Against Confusion
It can happen that you purchase the house of your dreams and the house comes immaculately appointed. There is a DSTV dish and two 5000 litre water tanks which are connected to an intricate system that fills the pool and can water the garden.
But prior to the transfer, the owner / seller removes the DSTV installation and the two water tanks are removed, leaving only the pipes behind. What do you do now? Are these objects not sold as part and parcel of the house? The answer to this question is not a simple one as it boils down to the intention of the seller and the manner in which the object or objects were attached to the property.
In terms of Falch v Wessels 1983(4)SA 172(T), auxiliaries (fixtures) are taken to follow the destination of the principal thing (property) unless a contrary intention (seller not actually intending to sell it with the house), surrounding customs and or usages of the community concerned indicate otherwise.
Therefore the following may help:
A. So, if the intention of the seller is different from the intention of the purchaser, then we need to look at the manner and form of the attachment of the fixture:
1. Can the fixture be used on its own and will it lose its identity?
2. Does the relevant object have the character of being part of the immovable property?
3. Has it been attached by physical connection?
4. Is it indented that the object should belong permanently to the property?
B. Then the manner of the attachment:
1. Is it capable of existing on its own?
2. Would the removal result in substantial damage to the principal?
And finally, the intention of the seller, if the seller had no intention of selling the property with the tanks then we have to determine if the tanks are of a permanent nature.
The above are only guidelines as the purchaser would have to take the seller to court to force the said seller to return the objects of the removal was effected prior to the transfer. So, when viewing a property, the purchaser must ask questions, such as, what will be sold with the property and what is not included.
Agents must also ensure that when viewing a property, they ask the seller what exactly is being sold with the property and what is not. This is to ensure that the potential purchaser and seller are on the same page.