Fixtures & Fittings – What’s the difference?

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 (“fittings” or “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.

Fixtures and Fittings – What’s the difference?

A question arising in all conveyancing transactions is whether an item in the property is a fixture (which stays with the property on sale, unless the contract says otherwise) or a fitting (which is removed from the property on sale unless the contract says it is an inclusion and therefore stays with the property).

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 item must be examined. 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.

Fixtures

Fixtures are considered part of the property. They consist of the house itself, other structures, and parts of the house attached to or built into the house which are considered a permanent part of it. Fixtures need not be listed on a contract for sale as they are considered part of the property. A fixture is usually an item:

  1. which is an integral part of the structure, or
  2. the removal of which would cause damage to the structure (e.g. the bath tub, basin and toilet).

Examples of fixtures include:

Plants buried in the earthHot water systems
A garden shed which has been cemented inCarpets
A basketball hoop attached to the garage wallClothes lines
A water tank resting on its own weightCeiling fans
Solar panelsMail boxes
StovesBuilt in bookshelves

Fittings

Inclusions/fittings are items which are not permanently attached to, or part of, the structures on the property. Only those inclusions listed on the contract legally stay with the property. Inclusions are things which might easily be removed without causing damage to the structure.

Examples of fittings include:

Pot plants and hanging basketsSome pool and spa equipment
Portable marqueeWashing machines
DishwasherClothes line
Wheelie binsMowers
TelevisionsGarden tools
Blindsstone carvings
bird bathsBBQ fittings
TV wall mounting bracketsalarm systems
floor coveringsair conditioners (excl portable a/c)
remote controllersTV antenna
range hoodsbuilt-in wardrobes
hotplatesscreen or security doors
insect screens on windowsgarage door openers
garden shedsgas heaters
external awningsswimming pool filtration equipment
automatic pool cleaners 

Avoiding uncertainty

Some items fall into a ‘grey area’ and may be considered as either a fixture or an inclusion.

Examples of these include:

Barbeques/Gas bottlesSprinkler systems
Curtain rods & curtainsLight fittings
built-in TVsTV wall mounting brackets

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.

A dispute between parties regarding the fixtures and chattels when they have not been clearly outlined in the Contract is a common occurrence. The potential legal costs which could be incurred would typically outweigh the actual value of the item.

The simplest way to avoid any disputes regarding fixtures and chattels is, when in doubt, list on the front page of the contract:

  1. items that could be deemed an inclusion; and/or
  2. items that are excluded from the sale.

It’s a good idea to remove or replace any items to be excluded from the sale (e.g. specific light fittings or curtains which match a bedspread), before the property is marketed for sale. This ensures that a prospective purchaser isn’t put off by thinking they will have to immediately buy those items (e.g. new curtains for the bedroom).

Contact us for prompt,reliable and friendly advice and assistance if you plan to buy or sell property.

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Removing or extending a caveat in NSW

What is a Caveat?

A caveat is a formal registration of a legal or equitable interest in land. If you are the owner of land in NSW and someone has lodged a caveat on your land, the Registrar-General will send you written notice. Lodging a caveat can prevent further dealings with the property until it’s removed. Following are ways to remove a caveat in New South Wales.

How do you remove or withdraw a caveat in NSW?
1.    Formal Withdrawal

The person lodging the caveat (the caveator) can withdraw it by instructing a solicitor or conveyancer who subscribes to an Electronic Lodgement Network Operator (ELNO) (such as PEXA) to lodge a Withdrawal of Caveat form electronically with NSW Land Registry Services [NSWLRS] (the fee is $147.70 as at October 2021).

Who else can apply to withdraw a caveat?
  • if joint tenants hold a caveat and one caveator dies, the surviving caveator;
  • the executor, administrator or trustee of a deceased caveator;
  • the Australian Securities and Investment Commission (ASIC); and
  • a trustee when the caveator is an infant or is deemed mentally incapable.

This process is only suitable for a caveator who wishes to withdraw the caveat. Where the registered owner, or another party with a relevant interest, wishes to remove the caveat, then the other methods set out below should be used.

2.    Lapsing

You may also remove a caveat if it lapses. This can occur when:

  • the caveator’s interest is satisfied because another party registers another dealing (e.g. if a caveator is an unregistered mortgagee and the mortgage is discharged);
  • the registered owner or a party with registered interest lodges an Application for Preparation of Lapsing Notice; or
  • a party lodges a dealing that the caveat prevents together with an Withdrawal of Caveat.

If the caveator refuses to withdraw formally, the property owner or another interested party may lodge (electronically via an ELNO) an Application for Preparation of Lapsing Notice to remove the caveat. The property owner may register another dealing on the land, which the caveat prevents, and apply for the lapsing of the caveat. The caveat will lapse and expire 21 days after the Notice has been lodged.

3.    Court Orders:
a.    Extending a Caveat

A caveator can apply to the Supreme Court of NSW seeking an order to extend the caveat. They must make the order and lodge it with the Registrar within 21 days from receiving the lapsing notice. A court will only honour a caveator’s order if the claim has ‘substance’. The onus of proof is on the caveator, and the court will decide whether the balance of convenience favours retaining the caveat.

Where a caveator is served with a lapsing notice and does not want their interest removed, they can give their written consent to extend the caveat. Such consent must include:

  • the full name of the caveator and registered number of caveat;
  • type of dealing consented; and
  • caveator’s signature (or their solicitor).

The consent must be absolute without any conditions. Removing a caveat by lapsing is most appropriate where it is unlikely the caveator will fight back or commence proceedings, and will instead either consent or allow the caveat to lapse willingly. Alternatively, lapsing is the best option where you cannot locate the caveator or they no longer exist (e.g. deregistered company).

b.    Withdrawing a Caveat

A party can apply to the Supreme Court for an order that a caveat be withdrawn. The party must lodge the application with the court together with a request form. This option is suitable if the need to remove the caveat is urgent, or where a party expects opposition from the caveator. The caveator bears the burden to establish a caveatable interest and reasonable cause (i.e. an interest in the land). (see Real Property Act Part 7A)

Summary

Deciding which process to use to remove a caveat depends on the circumstances. If:

  • the caveator no longer has an interest or wishes to withdraw, they can do so by a formal withdrawal;
  • you wish to remove the caveat and consider a dispute unlikely, you should file an Application for Preparation of Lapsing Notice;
  • the need to remove the caveat is urgent, or you anticipate a dispute, an application to the Supreme Court may be the best option.
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