‘Legal Landscape’ - What fixtures or fittings are included in the sale price of a property?

Darren Donnithorne and Stephanie Matthews from Marshall Diel & Myers Limited Property & Estate planning team answer your property related questions and issues in this third monthly edition of Legal Landscape with Marshall Diel & Myers Limited.

Question: What fixtures or fittings are included in the sale price of a property? 

As you look for your dream house, you may view many properties before you find the perfect home for your family. Oftentimes, when viewing a house with an agent, the house will still be furnished and it is not always clear what it is to be included with the sale. What items will the seller be taking with them when they move out of the property, and what will they leave behind? Most people focus on kitchen appliances and other big ticket items when considering this issue, but there are many other important items that can easily be overlooked (e.g. curtains, carpets and garden furniture).

In Bermuda, the seller is not required to fill out a form setting out what they will be taking with them when they sell the property. So if the parties don’t take the time to agree in advance what is included in the purchase price, this can lead to delay and confusion, or worse still, the buyers may close the deal only to discover that items they thought were included have been removed from the property or vice versa.  

In the absence of express agreement between the parties as to what items are included in the sale price, any dispute will be resolved by determining whether the item is classified as a fixture or a fitting. While there are court decisions which can help classify the items, the distinction can be convoluted and complicated leading to confusion and unwanted legal fees. 

Essentially, the relevant case law has developed two tests which are not always easy to implement. The first test considers the method and degree that an item is annexed to the land and the second test considers the object and purpose of annexation. For example, if an item has been affixed with a view to effecting permanent improvement then the likelihood is that it is a fixture, particularly if the item cannot be removed without causing damage. An item that merely rests on the ground is therefore more likely to be a fitting, but not necessarily - if the purpose of that item is to better enjoy the land, rather than the object itself, then it may be a fixture instead. Is that clear and understood? Probably not, and a further explanation of the matter could fill several pages! 

As a rule of thumb the greater the degree of physical connection to the property the more likely an object is to be a fixture. Fixtures are therefore generally items which are attached to and form part of the property (e.g. kitchen units, bathroom suites, light fixtures and built-in wardrobes) and therefore are included in the sale unless expressly excluded. Alternatively, fittings (or chattels) are not attached (e.g. free standing kitchen appliances, curtains and rails, carpets and lampshades) and are not generally included in the sale unless expressly agreed.

It is sensible to spend time making sure both parties are certain what items are to be included or excluded on the purchase of a property rather than relying upon the principles of case law, which may not turn out in your favour and can be quite convoluted. We would advise that parties draw up an inventory, ensure that all relevant items are adequately described and attach the inventory to the Sale & Purchase Agreement. Make sure your attorney is clearly instructed in this regard – it might save an awful lot of time, aggravation and cost down the road.

This article was written by Darren Donnithorne (Senior Associate & Head of the Property and Estate Planning Team) and Stephanie Matthews (Associate of the Chartered Institute of Legal Executives). 

This column is for general guidance only. It should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.

Got Questions? 

If you have any property questions or issues, please contact us at darren.donnithorne@law.bm or stephanie.matthews@law.bm. We would be happy to work with you to help you navigate the legal landscape in Bermuda, and you may even find your question featured on propertyskipper.  We look forward to hearing from you!  

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