The assumption is that any item attached or fixed to the property constitutes a fixture or fitting and that all loose items are moveables and therefore not included in the sale of the property unless otherwise agreed.
Generally this is true but there is a distinction in law that defines fixtures and it is essential to be aware of this as there are some exceptions.
The threefold-test was set out as follows in MacDonald Ltd v Radin NO and Potchestroom Dairies & Industries Co. Ltd 1915 AD 466-467:
- The nature of the particular article;
- The degree and manner of its annexation; and
- The intention of the person annexing it.
The object must, by nature, be capable of becoming part of the property itself and have the character of belonging essentially to immovable property. There must be an effective attachment, either by sheer weight or physical connection, and there must be an intention that it be a permanent feature of the property. The key question here to ask is whether it is intended to be permanently annexed to the specific property or not. This is the fundamental principle to apply in each case to determine if something is a fixture or fitting or not. Fixtures and fittings are a category of fixed assets.
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