The distinction between fixtures and chattels is incredibly important when it comes to property law and conveyancing, as under the law fixtures are part of the land and will remain with it, meaning when you purchase the property you also purchase these fixtures as part of the transaction.
Chattels on the other hand are not part of the transaction and the seller will take them with them as part of the transaction.
This concept itself is pretty straightforward; however there can be a grey area as to what is to be considered a fixture and what is to be considered a chattel. The last thing you want when purchasing a property is for settlement to come around and you end up with a property missing many of the things you thought were going to come with the house.
A good example of a case that examined whether items were to be considered fixtures or chattels is that of Australian Provincial Assurance Co Ltd v Coroneo. In this case the New South Wales Supreme Court looked at whether seats that were bolted to the floor and attached with one another in a theatre should be considered as fixtures or chattels.
The Court ultimately found that the seats were chattels, rather than fixtures, with judge Jordan CJ stating –
“A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so, for what purpose. If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is.”
““The test of whether a chattel which has been to some extent fixed to land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently, or for an indefinite or substantial period… or whether it has been fixed with the intent it shall remain in position only for some temporary purpose.””
When you’re buying a property it’s always a good idea to have your conveyancing lawyer review the contract of sale before you sign it.
The standard REIQ contract contains a section where excluded fixtures and included chattels are listed. It’s important that this section clearly details what is to be included in the purchase of the property and what will not be included. If these things are listed on the contract then any disputes can be avoided.
Our lawyers have come across some situations where there have been disputes when it comes to fixtures and chattels, so some handy tips for our buyers are:
Ask the Real Estate Agent Questions:
When you’re first inspecting the property it’s a good idea to ask the real estate agent lots of questions when it comes to what will be included as part of your purchase. Ask about things such as the dishwasher and dryer, light fittings and chandeliers, any pool equipment and cleaners and built-in vacuum cleaners. Then make sure these things are noted on the contract as being included. If they’re not it becomes a lot more difficult to prove and disputes can arise.
Take Lots of Photos:
It’s also good to take a camera with you when you inspect the property and as well as taking lots of photos of the general condition of the property, make sure you take a photo of all of these fixtures so you can prove what they look like, the condition they are in, and that they were present during your inspection.
Make Sure the Fixtures Work:
You want to make sure that as well as being included; each of the fixtures actually works. There’s no point buying a property with a dishwasher or over that doesn’t work. This may sound like an odd thing to do, but it’s worth turning on appliances and lights, just to ensure they are working at the time you inspected the property.
Ask Your Conveyancing Lawyer:
If either you, or the real estate agent, are in any doubt about any of the items it’s always a good idea to ask your conveyancing lawyer. They will be able to provide advice to you, or draft any amendments required to the Contract of Sale.