Considering Buying or Selling a Property soon?

Which items will stay and which will go?

It is important to clarify what items are being included in the sale of a property. The Contract of Sale will normally specify what moveable items (chattels) will remain with the property and if any fixed items (fixtures) will be removed from the property prior to the settlement.

Unfortunately the situation commonly arises where a property settles only for the buyer to find that some features have been removed from the property which they thought would remain with the home or land. 

A basic interpretation of the difference between a fixture and a chattel is if the item is affixed to the land to any great extent, it is a fixture. If it is a freestanding movable item and rests on its own weight, it is presumed to be a chattel. If the buyer wants any chattels to remain with the property, they should be noted in the Contract. Similarly if the seller wanted to remove any fixtures, they need to agree to this with the buyer and list it in the Contract.

Typically there is a two step test used to determine whether an object is a fixture of not.

1. Consider the degree of fixation.
2. Consider the intention relating to the fixation.

When determining if an item is a fixture or chattel the surrounding circumstances of said item must be examined.

A number of factors that may be considered include:-

1. Whether or not the item can be removed without causing substantial damage to the property to which it is attached. 
2. Whether the intention was for it to remain in position permanently or for an indefinite or substantial period.
3. Whether it has been fixed with the intention that it shall remain in position only for some temporary purpose.
4. Whether or not it is common practice for the item to be removed.

Common examples of fixtures

Plants buried in the earth	Hot water systems
A garden shed which has been cemented in	Carpets
A basketball hoop attached to the garage wall	Clothes lines
A water tank resting on its own weight	Ceiling fans
Solar panels	Mail boxes
Stoves	Built in bookshelves

 

Common examples of chattels

Pot plants and hanging baskets	Some pool and spa equipment
Portable marquee	Washing machines
Wheelie bins	Mowers
Televisions	Garden tools

 

Grey areas

Barbeques/Gas bottles	Sprinkler systems
Curtain rods & curtains	Light fittings

 

Dishwasher

In Farley v Hawkins a dishwasher was found to be a fixture. This is not to say that a dishwasher will always be a fixture. In this instance the dishwasher was found to be a fixture because the dishwasher had been set into the cabinet, it had left a large gap when removed and the tiling has stopped at the point where the dishwasher once sat. If the dishwasher stood separately it could be considered a chattel.

Air-conditioner

If an air-conditioner is connected to water pipes and attached by nuts and bolts, it is connected to the building. An air-conditioner is likely to be a fixture unless it is a portable air-conditioner.

In Summary

When you are purchasing a property the safest way to ensure all items you want to be left at the property is to include them in the Contract of Sale prior to signing.

If you are a seller and would like to remove a fixture from the property, you will need to make sure this has also been correctly listed in the Contract. Your Solicitor or Conveyancer at Rapid Conveyancing can advise you if the items have been included correctly in the Contract.

Ensuring that the relevant features are included in the Contract of Sale is the safest way to avoid any disputes regarding fixtures and chattels. It is a common occurrence for there to be a dispute between parties regarding the fixtures and chattels when they have not been clearly outlined in the Contract. The potential legal costs which could be incurred would typically outweigh the actual value of the item.

Let Rapid Conveyancing assist you to get it right in the first instance and save on time, money and avoid unnecessary anxiety.

Article posted 20 May 2016.

This document offers general information only and should not be relied upon as legal advice under any circumstance.  Please contact your solicitor for clarification on any areas.