30 Aug 2013
A Property24 reader asks:
We have just sold our property in Richards Bay, KwaZulu-Natal, and have a few questions about what fittings we are allowed to take with us i.e. the hob, stove plates, oven, bookshelves , our office desks because we are working from home, and my Victorian bath, and our two TV dishes.
When the buyer looked at our house he asked about the bookshelves and office desks and I told him that we wanted to take these. In the contract signed, in the special conditions paragraph, they only mentioned fixtures but none of these items are fixed but fitted.
Myles Wakefield, CEO of Wakefields Real Estate in KwaZulu-Natal, advises:
'Fixtures and fittings' is a minefield that can cause a lot of dissention. Buyers and sellers should make sure that everything they want to take place should be unambiguously listed in the sale agreement. Almost all sale agreements have subjective clauses, which allow buyers and sellers to stipulate the contractual requirements of the sale so that there can be no confusion.
If the seller wants to remove anything from the property that looks as if it should stay, such as the hob, stove and oven; the Victorian bath which ordinarily goes with the house or fancy bathroom mirrors; bar stools which go with the bar which remains; a wall unit/bookshelf that is detachable; a split air conditioning unit; a particular chandelier that was inherited; the pool cleaner, brush and net which go with the pool - then this must be stipulated in the agreement.
If the seller should remove any fixtures and fittings that were part of the sale agreement then the buyer has legal claim against the seller and can require him to replace the missing items or reduce the price of the property accordingly.
The satellite dish is an exception as in law it is not considered a permanent fixture because it goes with the decoder. If the desks are fitted and the removal of these would leave damage to the floor or wall the seller is required to fix this damage.
The legal obligation for buyers and sellers is to fulfil the terms and conditions of the sale agreement. If the contract says that the seller undertakes to fix a leak and repaint the damaged area prior to registration of transfer, this must be done, if not they are in breach of contract and can be sued.
If either party has to sue the party in breach of the contract the cost will amount to the actual cost if the sale agreement stipulates that costs will be refunded on an attorney and own client basis scale. If this is not stipulated then the court can award costs which would be a lot less than the actual incurred.
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