A home buyer on an internet forum asked, ‘What is the pettiest thing your seller has removed?’ Most replies are light-hearted: a loo roll holder, the curtain rails, a basketball hoop from above the garage door. Some tell a different story of buyers moving in and discovering missing kitchen units or damage from ripped out features. Others tell of an attic stuffed full of junk.
‘Fixtures and fittings can quickly become a source of irritation for buyers and sellers alike,’ agrees Emma Sheard, a Solicitor in the Residential Property team with Bailey Smailes. ‘In some cases, their removal may even result in a costly dispute. It is a pity, as most problems can easily be avoided.’
Here, she examines the thorny topic of fixtures and fittings and how your conveyancer will stop them spoiling your next home move.
What are fixtures and fittings?
Generally, fixtures are physically attached to the property and form part of it. In contrast, fittings are things you can readily remove. They are not attached to the building, other than by a nail or screw. For example, a mirror which you can easily take down is a fitting. In contrast, a central heating boiler or radiators are fixtures.
In practice though, there are a lot of grey areas. Often whether something is a fixture or fitting depends upon the context. For example, a painting is usually a fitting. However, it can become a fixture if mounted into wood panelling. Likewise, a greenhouse may be either depending upon the degree of annexation. If it has foundations, it is probably a fixture. If it is more temporary in nature, it will be a fitting.
Why does the difference matter?
This distinction is important as it may determine what you get when you buy a property. Unless the sale contract provides otherwise, fixtures form part of the property and the sale includes them. In contrast, the sellers still own any fittings and can take them when they move.
Unfortunately, this distinction can cause a lot of confusion. For example, you may assume certain household fittings are included in your purchase and feel disappointed if the sellers remove them. For example, curtain poles may not be worth much, but you may not want the cost of replacing them so soon after moving in. It can really take the edge off the pleasure of moving in. Nobody wants to discover all the shelves and lightbulbs in their new home are missing, even if they are classed as fittings.
Sellers can sometimes remove fixtures, wrongly believing they remain theirs. These could even be some of the things which attracted you to the property in the first place: a cosy wood-burner or the flagstone path leading to the patio. In this case, both sides could end up disappointed. You have the inconvenience and stress of an incomplete property and a potential dispute, while the sellers may have to return the items and pay compensation.
These situations are far from ideal and, as your solicitor, we would help you avoid them by ensuring the legal documentation is clear on what the sale includes or excludes.
Form TA10 and the sale contract
Form TA10 is a standard form covering fixtures and fittings. The sellers usually complete this as part of the conveyancing process. It sets out which items they will leave at the property, and which they will remove. It also allows them to say whether they require an additional payment over the agreed property price, and how much, for any item they are leaving.
If you are buying a home, we would check this form carefully with you to ensure it reflects your understanding. Some of the answers may surprise you. For example, the sellers’ idea of what an item is worth may differ from your own. It is important to clarify the position as soon as possible. This way your purchase can progress expeditiously, and you can be certain about what it includes.
Ideally, try to clarify what the sellers intend leaving before making your offer. Negotiations tend to go best at the start of the process when both parties have most to gain. This is the best time to negotiate the items’ value, or the cost of replacing them, into the price you agree. Make the basis of your offer clear to the sellers and their agent. This will avoid misunderstandings later.
If you have not reached agreement over an item, your solicitor can help by keeping any discussions professional and non-confrontational. However, it is better to agree as much as you can at the outset. This avoids potential disagreements in the lead up to exchange when it may be more difficult to find an alternative item or renegotiate on the property’s price.
Once you have agreed what the sale includes, your solicitor will ensure the contract accurately reflects this. This should avoid any unpleasant surprises on completion.
Special cases
Your future new home may have a feature that is important to you: an AGA, a hot tub, or garden pagoda, something which makes the property special to you. Confirm with the sellers if it is included in the sale and tell your solicitor. They can then make sure that the contract covers it properly, to be confident it will still be there when you move in.
Sometimes we may recommend a detailed schedule and annexing photographs to the contract. This provides extra clarity and reduces the risk of the sellers substituting inferior items before completion. This does not happen very often. However, it may be an issue if there are particularly valuable or heritage features in a property.
Conversely, sellers may insist on removing a certain fixture. They should agree this with you in advance and the contract should provide for them to repair any damage they make in taking it out. Even so, you may still want to check the property prior to completion to ensure they have done so satisfactorily.
Inspection can be useful in other situations too. For example, some contracts include a deemed inspection clause. Basically, this says the buyers should accept the property as it is on exchange of contracts even if the sellers have altered or removed items after the buyers made their offer. The clause may not hold up if challenged, for example, where the sellers acted improperly or misled the buyer. Inspecting the property can head off the cost and stress of a potential dispute.
As well as ensuring the agreement is correctly documented, sometimes we may also recommend physically checking the property before exchange or completion.
Vacant possession
The sale contract will usually provide for vacant possession. This means the sellers should leave the property empty unless you have agreed something is included in the sale. Even so, sometimes sellers leave behind rubbish, furniture, and personal possessions. It does not happen often, but occasionally buyers have discovered a loft full of junk, or even a tropical fish aquarium, and worse.
It is always better if you can resolve things amicably. But if this fails, talk to your solicitor. Do not dispose of the sellers’ belongings yourself as there is a procedure you should follow. However, the sellers are responsible for your costs and a solicitor’s letter may well encourage them to collect their stuff swiftly.
If you know there is a lot of junk in the property, which you doubt the sellers will clear, we may suggest inspecting the property before releasing the completion monies. This way, you can be confident your new home will be ready for you to move into and enjoy.
For further information, please contact Emma Sheard in the Residential Property team on 01484 435543 or email emma.sheard@baileysmailes.co.uk. Bailey Smailes has offices in Huddersfield and Holmfirth, West Yorkshire.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
