The law states this will depend upon whether the item is a “fixture” or a “fitting”.
A fixture is treated as part of the land (as such included in the sale) whereas a fitting (or chattel) does not pass with the land and can be removed by the seller.
The problem is, whilst it may seem obvious, it has been the subject of much uncertainty. Fitted kitchens for example would usually be classed as fixtures but what about the ever increasingly popular free standing kitchens? This could be an expensive oversight if an entire kitchen was freestanding and taken by the seller on completion.
Decisions by the Courts in the past have been ambiguous for example it was ruled that a holiday chalet was a fixture in one case and a holiday lodge in another was deemed to be a chattel. A tapestry nailed to the wall was held to be a fixture.
The test to determine whether something is a fixture or a fitting is:-
- The degree to which it is fixed to the land; and
- The purpose for which it is there.
This in itself has caused confusion. A statue for example has been held by the Courts to be a fixture as it was so important to the design of the garden – even though technically it could be freely moved and was not fixed by anything other than its weight. However this can be contrasted by a decision that held a sculpture to be a fitting.
The reality, it could be either, this is not very helpful. This signifies the importance of properly completing Form TA10, the Law Society’s Fittings and Contents Form, when you are selling a residential property. This form, once completed by the seller, clearly indicates those items that are to remain at the property and are included in the price and those which will be removed on completion. It also provides an opportunity for the seller to ask the buyer if they wish to purchase any items. The TA10 will be attached to and forms part of the contract.
When purchasing a property the form should be checked carefully to ensure that everything that is understood to be included in the sale is detailed as such within the form. If any items are not listed, ask your solicitor to check this with the seller’s solicitor prior to exchange of contracts. After this stage it will be difficult to argue that an item should have been included in the sale. Do not rely upon the estate agent’s particulars of sale detailing an item as included in the sale.
Form TA10 is completed by the seller at the outset of a transaction and is usually sent to the buyer at an early stage giving the buyer sufficient opportunity to raise any points that are not clear.
It is also necessary to consider any damage that may be sustained to the property when removing items. Form TA6, the Law Society Sellers Property Information Form, specifically asks the seller to confirm that reasonable care will be taken when removing any items. If the seller has ticked yes to this the buyer can, for example, expect the seller to repair walls that are damaged by removing items.
Fixtures and fittings are not limited to the inside of a property. Many gardens now are an extension of living space and items in the garden may be of significant importance to the buyer, for example summerhouses or heavy expensive pots containing plants, contributing to the overall appeal.
To avoid disappointment and disputes later a seller should take care in clarifying those items they wish to remove as early as possible. A buyer should ensure everything they believe to be included in the sale has been verified prior to the contract becoming legally binding. It should be remembered that many sellers will view fixtures and fittings as a way to recoup maybe a slightly lower purchase price than they would have liked so take care and ensure the position is clear from the outset.
If you require any further advice, please contact our Specialist Team on 0880 088 6004.