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With regard to acquiring immovable property in South African law, The Common Law principle of “superficies solo cedit” applies. Simply put it means that the purchaser receives the land

as well as the permanent physical improvements such as the buildings erected on the land as well as those things that are permanently attached to the improvements or buildings so erected on the land.

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, door frames, light fittings, built-in cupboards, fitted carpets, built-in cabinets etc.

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

The item should be of a permanent nature and intended to always serve the immovable property. In other words, it must be attached to the land or the structure erected on the land. Examples of this are a carport, steel security gates welded to door frames, and an irrigation system.

(b) The Intention Of The Owner

The intention at the time of attachment that it would be permanent and how it was attached is taken into consideration.

(c) The Manner And Degree Of The Attachment

The question is whether the item loses its own identity and becomes an integral part of the immovable property or if the attachment is so secure that separation would involve substantial damage to either the immovable property or to the item itself.

Unfortunately, a consideration of the above-mentioned three factors often does not provide a conclusive answer as to whether the item is a permanent fixture. From a practical point of view and in order to avoid confusion and disputes it is in the best interest of the seller, purchaser, and the relevant agent to apply their minds to the issue of fixtures and fittings before the signing of the deed of sale. If the seller wishes to specifically exclude an item which may be regarded as a fixture he should advise the agent and the purchaser of this fact. Similarly, if the purchaser is uncertain whether an item constitutes a fixture he should discuss it with the seller. Furthermore, if there is any uncertainty regarding whether or not an item constitutes a fixture then the parties should discuss the issue and reach agreement on this point. The relevant clause in the deed of sale should then clearly stipulate those items which had been included in the sale and those which have been excluded.

It is important to note that Unimark Distributors (PTY) LTD v ERF 94 Silvertondale (PTY) LTD 1999 (2) SA 986 (T) supports the argument that the seller’s intention must be ignored if it is clear from the manner in which an item was attached that it has become a permanent fixture