Fighting over fixtures and fittings

Disputes regarding the inclusion or exclusion of household items upon the sale of a property usually arise as a result of the unexpected removal by the seller of an object from the property. And such disputes often cost more to resolve than the value of the item which is being contested.

As the residential property market continues to struggle with buyers and sellers facing financial concerns, it is essential to ensure that each party agrees what is included in order to avoid a dispute.

The moral must be that if in doubt, ask your solicitor for specific confirmation of whether the item is included or not.

Legally, a fixture is an item which is attached to or forms part of the land and should not be removed from the property on the sale of the land, unless the seller expressly reserves the right to remove it. A fitting, or a chattel, does not form part of the land and is not included as part of the property on sale of the land unless the seller expressly agrees to leave the fitting at the property, with a potential additional sum paid by the buyer for its purchase. However, the ability to differentiate between the two on a practical level can be problematic and such disputes have, on occasion, been settled by the Courts.

'As the residential property market continues to struggle with buyers and sellers facing financial concerns, it is essential to ensure that each party agrees what is included in order to avoid a dispute.'

If you are considering whether an item is a fixture or a fitting, the Courts have held that the factors which need to be considered are the method and purpose of fixation, whether the intention was to make a permanent improvement to the property, or whether the attachment was intended to be temporary.

The Courts hold that items including fitted carpets, curtains, light fittings, gas fires and white goods which were not permanently installed as part of a completely fitted kitchen, were fittings. Bathroom and kitchen units which had been built into a bathroom or kitchen were held to be fixtures.

The House of Lords have held that if an item is intended to remain permanent and forms part of the land, it may be considered as a fixture regardless of the fact that it has no physical attachment to the land. Therefore, this implies that items which are only attached to land by their weight - a greenhouse or shed for example - can now be classified as a fixture and as such should not be removed, unless expressly agreed before an exchange of contracts.

The distinction also has an impact on the level of stamp duty land tax (“SDLT”) which is payable on the purchase of a property. If the seller and buyer agree that the buyer will purchase various fittings from the seller, no SDLT will be payable on these fittings, which may mean that the buyer can avoid a higher SDLT threshold. In contrast, SDLT will be payable on any fixtures within the property as they form part of the land and are included within the purchase price. However, both parties must be aware that it is not possible to avoid SDLT by reaching an agreement that a particular item is a fitting, when in law it is a fixture.

'The Courts hold that items including fitted carpets, curtains, light fittings, gas fires and white goods which were not permanently installed as part of a completely fitted kitchen, were fittings. Bathroom and kitchen units which had been built into a bathroom or kitchen were held to be fixtures.'

In light of the uncertainty in this area of law, it is crucial that the contract for sale expressly deals with any fixtures which the seller intends to remove by completion, any fittings which the seller agrees will remain at the property, any additional price from the buyer for fittings, compensation for the buyer if the seller damages the property during removal of fixtures, and apportionment of the purchase price for SDLT purposes.

The completion by the seller of Form TA10 Fittings and Contents, which should be sent to the buyer’s solicitor as an appendix to the draft contract, will also assist with the removal of uncertainty as to what is or isn’t included within the sale. Analysis of the estate agent’s particulars to ascertain which items are to be included within the sale will provide further security, and the seller’s solicitor should obtain clear instructions from the client as to which items they intend to remove and which will remain in the property.

Unfortunately, if there is no certainty and details are not in a Fittings and Contents Form or in correspondence between solicitors, then it is often down to the Courts to decide and each case will turn on its facts. Where items such as garden statues or valuable fireplaces are concerned, it is always best to ensure that specific details are agreed between the parties.

Saskia Arthur is a partner at law firm Boodle Hatfield specialising in high value residential property. She can be reached via email: sarthur@boodlehatfield.com