Mr. Purchaser is excited about buying the flat from Mr. Seller, more so as the flat comes with an installed DSTV satellite dish to which he only needs to connect his decoder to watch the Rugby World Cup later this year! Mr. Seller however has no intention of leaving his satellite dish behind, as he also wants to watch the rugby from his new flat. But can Mr. Seller just take his dish, or is Mr. Purchaser entitled to have the dish remain behind?
From the above it is clear that the parties are not on the same page as to the satellite dish. The buyer believes the dish forms part of the property and must remain, whilst the seller thinks that the dish is a moveable item, which he can take with him. Without the ownership of the satellite dish being specifically addressed in the contract of sale, it now becomes a question of interpretation as to which party has a right to the dish.
A fixture is a moveable item that becomes a part of immovable property by virtue of attachment. Our courts have established that the principles to be applied in determining whether an object is a fixture or not, are the following:
- Does the relevant object have the character of being part of the immovable property?
- Has it been attached by physical connection?
- Is it intended that the object should belong permanently to the property?
In this case, Mr. Seller could argue that even though the satellite dish is attached to the immovable property by physical connection, it does not have the character of being part of the immovable property and the intention was never that it should remain permanently on the property. Mr. Seller could also argue that the satellite dish was only attached to the property as an accessory to the decoder, which is used to view DSTV channels, and thus related to the moveable decoder rather than to the immovable property, and is thus not a fixture.
Mr. Purchaser on the other hand could respond by claiming that Mr. Seller had deceived him by allowing him to view the property with a satellite dish and no specific indication that he would remove the dish, thus creating the impression that Mr. Seller was including the dish with the flat and making the flat appear more appealing, and thereby creating a false or misleading representation of the property. Mr. Purchaser could also argue that as the dish was bolted to the property it became part of the immovable property and was thus a fixture that should remain.
Clearly, both parties have more than enough grounds to argue their case with potential merit on both sides. The question then becomes, how does one avoid these forms of arguments between buyer and seller?
A satellite dish can be removed fairly easily and can be seen as an accessory to the portable satellite television decoder, which is movable in nature. A satellite dish does not qualify as an integral fixture to the immovable property as it can be removed and employed functionally in another location and would thus not be seen as a fixture which cannot be removed.
In contrast, a door key, even though it is clearly a movable item, due to its function becomes a permanent fixture because a door to a house cannot be locked or unlocked without a key. The key therefore loses its independence and becomes part of the door and cannot be distinguished separately anymore. The removal of a key would therefore not be justifiable.
A seller can therefore remove a satellite dish, as it is capable of being employed functionally elsewhere, unless such removal is prohibited contractually. As our law does not specifically regulate whether a dish can be removed or should remain following a sale of property, it becomes important that the parties to the sale contractually determine what should happen with the dish, to avoid later disputes.
The parties should thus take the following steps in concluding any contract of sale:
- If the seller wishes to remove the satellite dish and not leave such on the property, the seller should clearly disclose this fact to both the estate agent and the purchaser to avoid any perception that the dish will remain.
- The contract of sale should specifically regulate the fact that the dish is excluded from the contract of sale.
- The parties should take the opportunity to deal with any other specific fixtures and fittings and determine whether these are intended to remain or be removed.
Where necessary, the assistance of an estate agent or property specialist should be sought to correctly circumscribe and regulate the treatment of fixtures such as a satellite dish before any contract of sale is signed by the parties, and so avoid later unnecessary disputes.
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