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 before settlement.

Unfortunately the situation commonly arises where at settlement of a property sale the buyer finds that some features have been removed from the property which they thought would remain in place.

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. Consider:-

1. the degree of fixation; and
2. 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 whether:-

1. the item can be removed without causing substantial damage to the property to which it is attached;
2. the intention was for it to remain in position permanently or for an indefinite or substantial period;
3. it has been fixed with the intention that it shall remain in position only for some temporary purpose; and
4. 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.

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.

Avoiding uncertainty

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

Summary

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

It is unfortunately common for dispute to occur between parties regarding the fixtures and chattels when they have not been clearly outlined in the contract. The potential legal costs of resolving such disputes typically outweigh the 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.

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