Here are some guidelines from Dirk Boshoff CEO of Spiralsight Properties to take note of when selling a property.
A fixture or not?
When is a fixture, a fixture and when is it not.
How do you answer someone who asks you very simply where you are going? "I'm off to town, I'll see you later". Have you ever heard anyone answer like this - "Having taken due consideration of all the circumstances, both foreseen and unforeseen, I shall be going to town today, which town shall hereinafter be called Johannesburg"? No one speaks like that but, as anyone knows, that's how attorneys write, whether addressing simple letters to colleagues or drawing comprehensive agreements. Legalese, or legal jargon, is almost a science among lawyers, in a way complicating and confusing simple language in the supposed interests of leaving nothing uncovered. This is true of all its branches, including property law, in particular when it comes to the subject of fixtures and fittings. You'd think, when selling a home, that this one would be easy to handle. Anything that sticks to the property must surely be a fixture and anything loose would surely be otherwise. It's not so simple. Some items, though firmly secured to the premises, even fixed to the ground, are actually movables and other loose objects that you can put in your pocket are fixtures? "The law is an ass", it has often been said, and you may feel the description applies here.
The Basic Principles For Determining Fixtures And Fittings
Obscure as the exceptions may seem, it's vital to understand them because the identity of items a seller may remove when selling his home often becomes a source of serious contention, especially when he has already taken them away. It's not a simple matter of saying that only what is fixed to the property must be left behind. Even though your contract may say it is sold with all its fixtures and fittings, these may not always be simply identifiable. \in South Africa the principle for determining a fixture was defined in an Appellate Division decision nearly a century ago and it has been adopted and restated almost without variance ever since. The case was MacDonald \ltd v Radin NO and The Potchefstroom Dairies & \industries Co. \ltd, 1915. It decided that three questions had to be asked. Firstly, does the relevant object have the character of being part of immovable property? Secondly, has it been attached by physical connection? Thirdly, is it intended that the object should belong permanently to the property?
The third question has become the most important one in actually making the final decision in each case. The key question today is simply to ask whether the item in question is intended to be permanently part of the specific property or not. It might seem academic to say that all objects bolted, screwed in, nailed, hooked or otherwise attached to the building are fixtures and this will usually be true but not always. \once you apply the basic principle it can become more complicated. A well-known court case in the Transvaal Provincial Division, Falch v Wessels, 1983(4) SA, decided that a stove is a fixture because it is obviously intended to be a permanent part of a home. As a stove connection is part of the fitted wiring the judge ruled the stove itself had to be considered and intended fixture. This decision applies to this day but only in the jurisdiction of the Court. \in \natal it has never been followed and stoves there are still regarded as movables. The argument there is that stoves are freely sold in shops and no stove can be intended to be part of a specific property unless it has been build into the structure. You see how complicated the law can be? Examples of Specific Exceptions To The Rule
Buyers and Sellers need to know how the principle of permanent intention applies if they are to avoid being caught unawares at this point. The following items, though entirely loose and movable, are actually fixtures on the bases that they are crucial accessories to fitted objects:
Bar Stools Where a bar has been built into a lounge or another room as a permanent fixture and it includes bar stools which are made of the same wood as the bar counter and are obviously intended to be an integral part of the bar, the stools are fixtures and may not be removed by the seller. This was actually decided in another Transvaal High Court case, Senekal v Roodt, 1983(2) SA.
Keys and Curtain Rails
Where brackets belonging to a curtain rail structure have been affixed to a wall, the rails as well as any rings become part of the whole feature as they are essential accessories to it. Without them the brackets serve no purpose. The same applies to keys for any doors on the premises. Without them you can't lock the doors - they are part of the fixture.
Any net which is specially designed to cover a swimming pool, exactly following its contours, and which is held in place by hooks which have been fixed to the paved surrounding, becomes a fixture as well. Once again it's a matter of applying the basic principle - is it intended to be permanently part of this specific property?
The same applies to carpets which have specifically been cut to match the floor plan of any room or home. Even if they have not actually been glued to the floor, they are intended to fit each specific room of that particular home and so qualify as an integral part of the fixture. All carpets glued or otherwise actually attached to the floor, whether specifically designed for it or not, are fittings. The very act of affixing them to the floor proves this. Loose carpets not so designed cannot be regarded as fixtures. In most cases lampshades, zozo huts, prefab units and wendy houses, if actually fitted to the property, will qualify as permanent features and are therefore fixtures. Which objects, however, although actually fitted to a property, can be removed as movables? The following are examples of "non-fixture fixtures":
4.1 TV Aerials and Satellite Dishes
The conflicting interpretations about a stove can also be applied to a normal TV aerial and no court case has ever decided whether these are fixtures or not. M-Net aerials and satellite dishes, however, are definitely not fixtures, even if they have been firmly fitted to the buildings or grounds. It's the question, once again, of whether they are intended to be permanently part of that specific property. Anyone with an M-Net decoder and TV set will obviously want to take both with him and, as the M-Net aerial to take both with him and, as the M-Net aerial is a crucial accessory without which the decoder cannot function, it qualifies as a movable as well. The same applies to satellite dishes and DSTV.
4.2 Personal Signposts
Any signpost with a personal inscription engraved into it, such as "Welcome to the home of John and Joan Smith", is obviously only intended to be part of the property as long as the Smiths live there. Even though it ma be cemented into the ground it cannot be regarded as a fixture. It may all seem a bit confusing but there is a simple remedy when selling or buying a property. Make sure any item about which there can be any dispute is clearly defined in the sale contract! If there are any fixtures the Seller may want to remove, let this be agreed on and let the parties both ensure they are identified in the contract. Likewise let all items about which there could be some dispute, such as a TV aerial, be clearly stated as fixtures and fittings sold with the property. Prevention here is much better than negotiations or court actions later to determine the issue.
What is, and what is not, involved in the relevant inspections.
Electrical Certificate.
The electrical certificate covers the permanent electrical installation which is everything from where the Eskom cables join to the property up to the points where the cables terminate at the appliances, be it a plug outlet, a light fitting or a more permanent connection to a fixed appliance, like a stove, pool pump, air con unit or geyser. It is important to know that the actual appliances themselves do NOT form part of the certificate, be they temporary or fixed appliances. It is generally accepted that all fixed appliances get sold with the property and it is the duty of the seller to disclose any issues with these devices. The certificate covers that the appliances are connected correctly to the installation and that power is present, but we do not test the actual appliance itself.
Beetle Certificate.
The beetle certificate can be a source of much frustration for two reasons. There are no specific laws governing exactly what is required for a beetle inspection, it is a contractual agreement only, based on the beetle clause in the specific deed of sale which can vary dramatically from one contract to the next in terms of which beetle or beetles we are required to check for and where on the property we are obliged to check, be it only in the main dwelling or all timbers on the property, which would then include wooden fences, wendy houses and any other wooden structures etc.
The beetle certificate is further limited to a VISUAL inspection of ACCESSIBLE timbers for ACTIVE infestation.The mere fact that we cannot see evidence of infestation with the naked eye at the time of the inspection does not guarantee that it is beetle free as the larva can live undetected inside the timbers for years and only become evident when they mature and exit the timber leaving flight holes and dust. The timbers need to be accessible at the time of the inspection, timbers in enclosed ceilings, wooden floors under fitted carpets, or any other inaccessible area cannot be checked.
Plumbing certificate.
The plumbing by laws are primarily concerned with reducing water wastage and ensuring that our potable water and sewage water do not mix. The geyser should be plumbed correctly, a pressure release valve of the correct value, vacuum breakers correctly installed, emergency overflow installed with a metallic pipe, all overflows to be plumbed to the outside and discharge to atmosphere. Check that the water meter reads when water is flowing and stops when all taps are closed to ensure there are no leaks. None of the taps leak when in the OFF position and are correctly fixed in position. Taps that leak when ON are not covered, blocked drains are not covered.
PLUMBING CERTIFICATES: A REQUIREMENT FOR PROPERTY TRANSFERS IN THE CITY OF CAPE TOWN
The City of Cape Town recently passed a by-law in terms of which it is required that a plumbing certificate issued by an accredited plumber is e-mailed to Council prior to registration of transfer. The form of the certificate is specifically prescribed in Schedule 4 of the By-Law.
The questions that immediately come to mind are: ?What is an accredited plumber and what are the penalties for non-compliance?? An accredited plumber is a plumber that belongs to the Institute of Plumbing South Africa (IOPSA). A check can be done on IOPSA?s website to check whether a plumber or plumbing company is accredited with IOPSA. Regarding the penalty issue, although the City has indicated that they are not allowed to withhold rates clearances as a result of non-compliance with this requirement, the By-Law states in Section 64 thereof that any person who contravenes or fails to comply with its provisions (amongst other things) is guilty of an offence and is, on conviction liable for a fine or imprisonment not exceeding five years or both such fine and term of imprisonment. Furthermore, Section 12 stipulates that no person may use water from the water supply system unless an agreement referred to in Section 13 or 14 has been concluded (i.e. through a metered water supply point specifically installed by the City for the supply of water). As Section 14 does not refer to any agreements, but merely to the production of the certificate during the transfer process, this could create a situation in future where the non-production of such a certificate may cause problems when a new owner applies for the opening of an account after transfer has taken place.
The By-Law does not address how long such a certificate remains valid or whether it can be transferred from one registered owner to another. It can however be implied from the certificate itself that a new certificate needs to be obtained for each transfer as it does not contain an expiry date and requires the details of the seller, the purchaser and the property in each instance. The certificate does not directly distinguish between Sectional Title units and Free Standing Erven. However, as a result of the fact that ?Owner? (the person in whom, from time to time, is vested the legal title to the premises) is defined in Section 1 to include the owner of a Section as defined in the Sectional Titles Act and the Developer or Body Corporate in respect of common property, it is safe to assume that it is applicable for transfers in both instances.
We therefore strongly suggest that Agents deal with this matter contractually to avoid any issues down the line or during the transfer process, by including the following clause in their Deeds of Sale if they operate in the jurisdiction of the City of Cape Town:
In terms of the City of Cape Town Water By-Law 2010 the Seller agrees at his cost to provide the Conveyancing Attorneys prior to lodgment of transfer in the Deeds Office with a Certificate in terms of Section 14(1) of such By-Law in the format set out in Schedule 4 to such By-Law
The increasing scarcity of water in the Western Cape prompted the City of Cape Town to pass a bylaw, which came into effect on 18 February 2011, requiring all properties sold to be issued with a certificate of compliance (COC) by a registered plumber. This raises the cost of selling a home, and could result in delays in getting property transferred. Conveyancing attorney, Meyer de Waal, said the new bylaw was a long time coming, and ?water scarcity is a national issue, so I expect the bylaw to make its way into other provinces soon enough?. ?The City?s amended Water By-Law, provides an opportunity for the City to be pro-active and introduce water conservation and demand management measures to ensure sustainability of the water supply to its consumers?, says the City?s Director of Water and Sanitation, Philemon Mashoko. All requirements of the Water By-law must be complied with as form the promulgation date. One of the most important changes to the by-law is that a Certificate of Compliance (COC) of water installations must be obtained and submitted to the City upon the transfer of any property to a new owner. This applies to domestic, commercial and industrial properties and includes sectional title units.
A suitable qualified and accredited plumber in terms of the South African Qualifications Authority, must certify that:
? The hot water cylinder complies with SANS 10252 and 10254. ? The water meter registers. ? There are not water leaks on the property. ? Water pipes and terminal fittings are correctly fixed in position. ? No storm water is discharged into the sewerage system, ? There is no cross connection between the potable supply and any grey water or groundwater system which may be installed.
The certificate of compliance must confirm that the property has no water-related or plumbing defects and must be issued before transfer. According to the Cape Town municipality, the city loses approximately 79 billion litres of potable water every year thanks to water wastage. The city has introduced several measures to curb the losses from private homes. The city said regular, random inspections would be carried out to curb cheating and ensure certificates were issued according to the required standards.
Sandy Walsh, head of training and education at the Institute of Estate Agents in the Western Cape, said estate agents needed to take on the responsibility of advising sellers that inspections must be conducted before the property is put on the market. ?Sellers need to consider the costs of plumbing repairs to meet compliance needs. This will help seller avoid unexpected expenses after the date of transfer. Repairs can run into thousands of rands, but must be completed before date of transfer.?
Larry Berger, chairman of the Institute of Plumbers of South Africa (IOPSA) said there were enough qualified plumbers in the Western Cape to deal with the demand the new water bylaw would create. ?The cost of an inspection should be in the region of R500, and the repair costs will be determined by the extent of the repairs that need to be done.? Simon Rosemond, an independent regulator, suggested that if property owners were concerned about inflated quotes, they should obtain at least two additional quotes sourced from independent plumbers.
EXTRACT FROM : AGENT April 2011/Issue 107 The Official Publication of the Estate Agency Affairs Board
Gas certificate.
The gas inspection is probably the least confusing of all the inspections, it's purely to do with safety around explosive gases. The inspector will check the following: Cylinder storage to comply with safety zones. SABS approved piping and installed in the correct manner. The installation of isolation and emergency valve. Adequate ventilation at cylinders and inside rooms. If SABS approved appliances are connected to the reticulation system. A pressure leak test to ensure system continuity.
Electric fence system certificate
In terms of the Occupational Health and Safety Act, Act No. 85 of 1993, as applicable to the change of ownership of immovable property, Regulation 12 of the Electrical Machinery Regulations imposes an obligation on the Seller (owner) of an electric fence system to have an electric fence system certificate of compliance. The requirement to have an electric fence system certificate does not apply to a system in existence prior to 1 October 2012. However, as with an electrical compliance certificate, it will be required where an addition or alteration is effected to the system or there is a change of ownership of the premises on which the system exists if the change of ownership takes place after 1 October 2012. The electric fence system certificate is separate from an electrical compliance certificate and therefore an added requirement if the property has an electric fence system. A transfer registered after 1 October 2012 will trigger the obligation to provide a certificate by the Seller. The Seller will be responsible for the issuing of an electric fence system certificate if there exists an electric fence system on a property that is currently in the process of being transferred. The certificate is transferable. Therefore, in the event of there being an electric fence system on or around the property and which relates to the property the Seller shall, prior to registration of transfer of the property, be obliged at the Seller?s own cost and expense, to deliver to the Purchaser a valid electric fence system certificate as contemplated in Regulation 12 of the Electrical Machinery Regulations made in terms of the Occupational Health and Safety Act. Once it has been issued, there is no need to obtain a new one upon a change of ownership.