WHAT IS INCLUDED IN A SALE OF IMMOVABLE PROPERTY?

When immovable property is sold, all permanent improvements and permanent fixtures are included in the sale and must be delivered to the purchaser with the land. However disputes may easily arise between the parties regarding what items form part of sale.

It is not possible to sell land and the permanent improvements thereon independently from the land itself. It is also not possible to sell portions of a building to separate purchasers unless the property is converted into a sectional title scheme in terms of the Sectional Titles Act, 1986.

A further question often arises regarding when has an item become permanently affixed to the immovable property and would then form part and parcel of the sale. Regard must be given to the nature of the attachment, the purpose thereof and the manner of the attachment. The intention of the owner of the item at the time of the attachment must also be taken into consideration. For example if the owner installs a satellite dish on the property, he may intend to take the dish with him when he sells the property and it can be easily removed. Due to the manner of attachment and the owner’s intention when it was attached, the satellite dish does not become a permanent fixture. It follows that there is no hard and fast rule that certain items are or are not permanent fixtures.

Apart from permanent improvements and fixtures some movable items may also be considered as part of the sale, by operation of law. These are typically movable accessories that are of a permanent service to the immovable property and necessary for the effective use and enjoyment of the property, such as the keys of the house. Another example would be a property that has a built-in bar counter, that can be considered a permanent fixture, with loose bar stools. If the loose bar stools are designed to form a unit with the bar counter they will be deemed to be accessories of the house and are by operation of law included in the sale of the immovable property. A loose item such as stove (if it is connected by cable to the electrical supply) is considered an accessory of the house in the inland provinces but on the coast it is generally accepted that it does not form part of the sale. Again there is no clear-cut rule and disputes can easily arise on what movable items are of a permanent service to the immovable property.

It is thus advisable to draw and sign a schedule specifying what movable items, fixtures and fittings form part of the sale. This schedule can then be incorporated in the contract or be referred to as a separate document. For instance if a particular light fitting is to be retained by the seller this must be stated in the contract and similarly if the loose swimming pool equipment must remain on the premises this must be set out in the agreement.

Source: South African Property Practice and the Law HJ Delport Juta service 21, 2017

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)