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Goodeve, Im currently collating and doing a assigment…

Customer Question
Goodeve, I'm currently collating and...
Goodeve,

I'm currently collating and doing a assigment and one of the aspects I need to over is Princilples of imovable property law and passing the risk - do you perhaps have related court cases/websites which I could use as resources ? The more case I can apply the better or other useful info related to subject.
I thank you kindly . Pls foward to my e-mail [email protected] if possble.
Thanks a lot!!
Submitted: 8 years ago.Category: South Africa Law
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Answered in 6 minutes by:
7/5/2010
Lawyer: JP, Attorney replied 8 years ago
JP
JP, Attorney
Category: South Africa Law
Satisfied Customers: 1,063
Experience: General South African Law.
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Good evening!

 

I will try to assist when i am at the office tomorrow!

 

In the meantime could you kindly give me more detail you say principles of immovable property law what principles are you referring to or how is the question asked?

 

The passing of risk what is asked ?

 

Maybe copy and paste the whole heading of the assignment in here.

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Customer reply replied 8 years ago

Hi there,

 

It's two questions.

 

1) A client of Nedbank's has just phurchase a commercial property,which has been partailly financed by Nedbank.Upon taking occupation of the building the client discovers that the seller has removed the air conditioning units in each of the offices, all the pot plants in the building as well as the chandelier in the reception.In terms of the common law, waht is included in a sale of the property?What tests do the court use to detremine what is included in the sale of the property.

 

 

b) Your client has phurchased a building which is partially financed by nedbank, proir tro taking trabsfer an electrical short caused a fire which caused a million rands worth of dammage in teh builing. The seller says that it is not his problem and the risk has passed to teh buyer ( My client ) Discuss fully

 

My client whishes to know whjat is his legal posistion and he seeks my advise, it mentions that I should make reference to relavant case law to assist my answer.

 

Please correct me if I'm wrong,

First instance - client can not remove airconditioning on premises as it's a fixed fixture and by taking this out,he damage the property.That counts for teh chandelier as well. Pot plants is negiotable, should the seller stipulated up front in the sale of contract that pot plants will be removed at the time, mutaul agreement was achieved, no problem.

 

 

Second instance - the transfer has not yet take place - the seller is still liable.

 

I nedd court cased or perhaps more facts around these two subjects.

 

Need this by Friday, do you think you can help this lady ?

Lawyer: JP, Attorney replied 8 years ago
Thanks for the info in consultation for the whole day will try to assist late afternoon or tomorrow is this fine?
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Customer reply replied 8 years ago

Hello,

 

Yes, I understand. But do think about it .....you would be saving my pretty little Laughing....if you coulf offer some case law.

 

Hope to hear from you later. rgds

Lawyer: JP, Attorney replied 8 years ago

Hi !

 

One of my consultations was canceled so here goes:

 

Please correct me if I'm wrong,

First instance - client can not remove air conditioning on premises as it's a fixed fixture and by taking this out,he damage the property.That counts for the chandelier as well. Pot plants is negotiable, should the seller stipulated up front in the sale of contract that pot plants will be removed at the time, mutual agreement was achieved, no problem.

 

You are correct about the aircon and chandelier the potplants may be removed unless stipulated in the Deed Of Sale to the contrary. Your client needs to institute action to claim damages for the aircon and chandelier

 

 

Second instance - the transfer has not yet take place - the seller is still liable.

 

You are correct risk only passes on date of registration. In many Deeds of Sale the following clause is inserted: Should occupation be effected before registration then and in such event the risk of profit or loss attached to the property shall pass to the Buyer.In terms of this clause the common law is changed and the buyer will be responsible.The property will more likely than not still be insured as the bond would have not been canceled as registration has not yet been effected.

 

General and Case Law

 

Most sale agreements list a few standard fixtures and fittings such as fitted carpets, fixed light fittings, fitted cupboards, pool equipment, curtain rods, remote controls for electronic gates...

 

As you can see from the above examples, something like a remote control which is movable in itself is still a fixture and fitting because it is integral to the functioning of the gate, which is a permanent structure.

 

In deciding what constitutes a fixture and fitting it is not as simple as saying if it is movable it isn't a fixture and if it is immovable it is one.

 

Case law gives us a guideline as to what the courts would consider in deciding whether something is a fixture and fitting.

 

The factors to consider would be:-

 

1. The nature of the attachment;
2. The purpose of the attachment;
3. The manner of the attachment;

 

Lastly, if the first three factors aren't conclusive on their own then the intention of the owner at the time of the attachment of the item to the property is considered.

 

The case of Unimark Distr (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) emphasized that the first three factors are not independent of intention. It also stated that intention is to be determined in the context of all the relevant facts. Common sense, reasonableness and the prevailing standards of society are determining factors. The court held that 'an intention which is totally insulated and devoid of reality cannot be recognized and given effect to.'

 

In S v Loewenthal 1983 (3) SA 430 (T) the accused sold his house inclusive of all existing fixtures and fittings of a permanent nature. There was a hand-carved front door which was a striking feature of the property, which the accused removed. The court's decision was that the door was immovable and thus part of the house and should not have been removed.

 

A buyer who purchases immovable property legally acquires the land together with all permanent improvements on the land. Permanent improvements include not only the physical structure but also items, which are permanently attached to the structure. These items are commonly known as fixtures and fittings. If the item forms an essential part of the property then the item is a permanent fixture. Roof tiles are an example of such an item. Furthermore if an item has been physically integrated into the property or cannot be removed without damaging or destroying the item or the property, then the item is a permanent fixture - examples are water pipes, window frames and doorframes. It is not necessary to stipulate in the deed of sale that such items are included in the sale. They are clearly permanent fixtures and are accordingly included by law. Examples of other items, which are regarded in law as being permanent fixtures, are light fittings, built-in cupboards, fitted carpets, built-in cabinets and the like.

Although the law is clear on the question of whether the abovementioned items are permanent fixtures there are other items involved in the sale of immovable property on which the law is less clear with regards XXXXX XXXXX or not such items are permanent fixtures. Further problems are created in practise due to the fact that sellers and buyers are understandably not familiar with the law relating to fixtures and fittings. Disputes accordingly often arise between sellers and purchasers regarding whether or not an item constitutes a permanent fixture and is accordingly included in the sale.

 

The legal test for determining whether an item is permanently attached to a property (and is therefore a fixture or fitting and included in the purchase price) involves the consideration of the following three things: (a) the nature of the attachment, (b) the purpose of the attachment and (c) the manner of attachment i.e. the way in which it has been attached to the property.

 

Unfortunately a consideration of the abovementioned three factors (nature, purpose and manner of attachment) often does not provide a conclusive answer as to whether the item is a permanent fixture.

 

When this is the case a fourth factor must be looked at, namely the intention of the owner at the time of the attachment of the item to the property. In other words, did the owner intend the item to become a permanent fixture when he attached it? This is obviously a subjective test and it is often difficult to determine the seller's intention. From a practical point of view and in order to avoid confusion and disputes it is advisable for the seller, purchaser and agent to apply their minds to the issue of fixtures and fittings prior to the signing of the deed of sale.

 

I trust that this helpsSmile

 

 

 

Kind Regards

JP

Attorney

JP
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Lawyer: JP, Attorney replied 8 years ago

Good Evening!

 

Just wanted to inform you that i answered your question as i know your assignment is due by Friday.

 

 

 

 

 

Kind Regards

JP

Attorney

 

 

JP
JP, Attorney
Category: South Africa Law
Satisfied Customers: 1,063
Experience: General South African Law.
Verified
JP and 87 other South Africa Law Specialists are ready to help you
Ask your own question now
Customer reply replied 8 years ago

HI JP,

 

I was so tired last night, so did not had a chance to log on, never the less you are excellent and making my day. I thank you for putting me on track and giving me n "hup stoot " ------

This web site is excellent, telling everyone about it,

thumbs up for my assignment!! Wink

 

Have a great Wednesday....

Lawyer: JP, Attorney replied 8 years ago

No problem you are welcome!

 

Remember to actually go and read the cases and supplement same with your own ideas other wise you will learn nothing!Cool

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