By: Sanette Viljoen
When a person buys fixed property, the question is usually asked as to which items are considered to be permanent fixtures and are therefore included in the sale. Many buyers have been disappointed after buying a home to find the seller removed certain items they had assumed were part of the purchase. The leading authority in this regard is the case of MacDonald Ltd v Radin NO and the Potchefstroom Dairies & Industries Co Ltd 1915 AD 454.
In this case it was found that there are three questions that need to be asked to determine if something is a permanent fixture to the home:
- Is the relevant fixture of such a nature that it forms part of the fixed property?
- Is it physically attached?
- Was the intention for it to be attached to the property permanently?
The key question and also the most important of the three, is what was the owner’s purpose when he attached the item? Was the purpose for it to be a permanent fixture?
There was a ruling in the old Transvaal division which stipulated that a stove was a permanent fixture and could not be removed, but in Natal’s courts this principle did not apply and the seller could remove the stove and take it with him.
It therefore is important to always ask what the purpose was when the item was attached. Is the stove built into the wall and the layout of the kitchen of such a nature that only that stove will fit in there, or is it a loose-standing stove?
There are other circumstances as well where loose-standing items can be seen as permanent fixtures. Following are some examples of permanent attachments, whether loose-standing or not, on the basis of them being fundamental accessories:
- A built-in bar of teak wood, together with six teak bar stools. The entire bar matches with the same upholstery, the same shape, the same wood. The six loose-standing bar stools will then definitely be considered permanent fixtures.
- Keys of course are movable items, but are considered to be permanent fixtures.
- Curtain rods as well as curtain rings and the hooks holding the curtains are seen as permanent fixtures.
- Swimming pool net or any other net specifically designed to fit over the swimming pool, together with the hooks mounted specifically in the paving and made for the swimming pool.
- Wall-to-wall carpets specifically cut to fit into the home’s floorplan. Loose carpets are excluded, unless the loose carpet was specifically cut according to the room’s floorplan.