When selling or buying a property, all ‘fixtures’ are included in the sale of a property without having to be mentioned specifically. You can specifically exclude fixtures, however, if it is not specified in the Contract, the presumption is that the fixture is to remain and is sold with the property.
It is therefore important to understand what is a fixture and what is a chattel.
What is a fixture?
Simply put, a fixture is something attached to the land or building that cannot be either simply lifted up and taken away, or unscrewed and taken away without doing any damage to the property. It is usually something that is permanently attached to real property or land and forms part of the property.
Some examples of fixtures include electric or gas stoves (which are normally wired in or fixed to the property), a ducted air conditioning unit,
What is a chattel?
On the other hand, something that can easily be removed without damage to the property or land, would be considered a chattel and is not included in the same of the property, unless listed as an inclusion in the contract.
Some examples of chattels include household appliances, furniture, or pot plants. A shed could even be considered a chattel if it is not fixed to the land and can easily be removed without causing damage, although it is best to specify that it is excluded to avoid any confusion that might arise if the purchaser was to expect the sale to include the shed.
How to determine what is a fixture or chattel?
Although it appears easy to differentiate between the two, in practice, there are many factors which will need to be considered when determining if something is a fixture of chattel.
Some factors that will decide if the item is a fixture or a chattel include:
The degree of annexation – that is, if the object is attached to the land by more than its weight, it would raise the presumption that it is a fixture. If not, you would presume it is a chattel.
The intention at the time it was fixed to the building or land – after the presumption has been raised, the party seeking to refute it has the burden of proving that the intention of the party (which affixed or did not affix the item) was that the object be a chattel or fixture despite being unattached or fixed.
How do you determine the intention at the time it was fixed?
Normally, the Court will consider the following:
- The nature of the item;
- the relation and situation of the two parties;
- the mode of annexation or how well was attached;
- the purpose for which it was fixed.
For both buyer and seller, the safest course is to ask your solicitor to specifically include or exclude in the contract any items about which there can be room for doubt.