If You Turned the House Upside Down…

In our last Pen-Points article, we explored the idea that every contract tells a story.

Part of that story is obvious. The purchase price. The settlement date.  Buyer and Seller.

But every contract also contains answers to questions that it can be easy to overlook.

One of the most common is surprisingly simple.

What exactly is being sold?

One of the first things law students learn in property law is the difference between a fixture and a chattel.

It’s a concept that can seem surprisingly complicated until someone explains it with a simple analogy.

Imagine you could take the roof off a house, turn the entire property upside down, and give it a good shake.

Whatever falls out probably wasn’t intended to form part of the sale.

Whatever stays put probably was.

It’s an oversimplification, of course, but it’s one that has stayed with many property lawyers throughout their careers because it captures the essence of the question.

What forms part of the property, and what doesn’t?

Most buyers understandably assume they’re purchasing everything they saw when they inspected the property. They picture the home exactly as it looked on inspection day, right down to the light fittings, shelves, appliances and landscaping.

Often that’s exactly what happens.

Sometimes, however, it’s not.

The law draws a distinction between fixtures, which form part of the property, and chattels, which remain the seller’s personal property unless the contract provides otherwise.

That sounds straightforward until you start looking at real-life examples.

A wall-mounted television.

The television bracket.

A pizza oven.

A built-in coffee machine.

A garden statue.

Floating shelves.

An EV charger.

Security cameras.

A cubby house.

Large outdoor pot plants.

Some of these may clearly form part of the property. Others may not.

It depends what the contract says.

That’s why disagreements occasionally arise just before settlement, when a buyer walks through the property expecting to see something still there, while the seller believes they were perfectly entitled to take it with them.

Many people assume the answer simply depends on whether an item can be removed.

In reality, it’s more nuanced than that.

The law considers matters such as the degree to which an item is attached to the property and the purpose for which it was attached. In other words, has it become part of the property itself, or is it still simply an item belonging to the owner?

The answer isn’t always obvious.

The good news is that fixtures disputes are often among the easiest conveyancing disputes to avoid.

If there’s an item that is particularly important to either party, the safest course is to address it expressly in the contract before exchange.

If a buyer couldn’t imagine purchasing the property without the pizza oven, or a seller has every intention of taking the ornamental fountain that has been in the family for years, it’s far better for everyone to have that conversation before the contract is signed than the day before settlement.

Good conveyancing isn’t simply about moving a transaction from exchange to settlement.

It’s about identifying the questions that have the potential to become disputes and resolving them before they do.

Because every contract tells a story.

And one of the most important chapters is making sure everyone has the same understanding of exactly what is being bought and sold.