You cannot take it with you!

06 February 2012 67

When it comes to what fixtures and fittings goes and what stays in a house move, any property professional will have numerous stories of stinginess and spitefulness of sellers removing, to the horror of the buyers, everything from towel racks, shelves in a bathroom to even all the light bulbs in the house!

In terms of our common law, a seller cannot remove permanent fixtures.  Some things are traditionally a source of conflict: curtains, carpets, fireplaces, gas, white goods, plants, door furniture and light fittings.  Others are subject to fashion. 

The decision whether a movable item which is affixed to an immovable one loses its identity and becomes an integral part of the immovable, depends on the following factors, namely objectively, the nature of the thing and the manner of its annexation and, subjectively, the intention of the owner of the movable at the time of its annexation.  The intention of the owner is of lesser importance if an examination of the physical features produces a conclusive result.  The subjective intention of the owner becomes important only if the physical features are not decisive.

Buyers (and estate agents) should be wary of assuming inclusion and sellers should be careful not to throw into negotiations content they may discover they need for their new home.  Sentimental attachment to seemingly unimportant goods can be a further complication and it is always a good idea to check with both spouses or partners who are selling.

The removal of valuable fixtures is most prevalent when a seller feels particularly hard done by.  Be a tough negotiator but leave some goodwill. It's when someone feels they've really been done in that the resentment starts.

In some instances, it is advisable to conduct a pre-completion check, even holding back a certain amount of money if there is doubt over compliance. 

In theory, you would have legal redress but could you cope with all the time, trouble and expense to enforce this? If you do, the small claims court is one inexpensive avenue that can be utilised. 

To summarize, be wary of assuming inclusion.  Candid negotiations will serve as a buffer against mounting resentment on the part of the seller and the estate agents should play a leading role in the negotiations to avoid the acrimony associated with the removal of permanent fixtures.