The issue of what is included in a house sale can be contentious, especially if nothing has formally been agreed. Slater and Gordon’s Head of Residential Property, Sam Blackburn, explains.
“I had a query from someone who had recently exchanged contracts on her house purchase. The sellers had just informed her that all the fixtures and fittings were going to be removed. This included items such as curtain poles, light fittings, and the free standing gas cooker. The firm of solicitors acting on her behalf had not shown her a list of what was included in the sale prior to exchange of contracts and so she wanted to know who was at fault.
The issue of what a seller should leave behind and what a buyer should reasonably expect to find can be debatable. It has been particularly evident during the recession where sellers have not had the same choice of buyers that they have been used to previously, and, consequently, buyers have been negotiating substantial discounts.
To claw back some money, sellers will take everything they possibly can and strip the house bare, even down to light bulbs. Many people barely consider what forms part of the sale as they are either unaware that they should do so, as it has not been raised with them, or because they are anxious to exchange contracts as quickly as possible, get the keys and move in.
Prior to exchange of contracts, a list of what is included in the sale should be produced by the seller and its lawyer and sent to the buyer. This includes what are known as “the fixtures and fittings”. The distinction between the two is very important.
Fixtures are treated as forming part of the land. Items that are attached to, and form part of the land can be expected to be included in the sale price, unless the seller expressly reserves the right to remove them before exchange.
By contrast, fittings do not form part of the land, and so are not included as part of the property on sale of the land unless the seller expressly agrees to leave them behind”.
Sam adds, “A good way to look at it is if you turned the house upside down and shook it, what would fall out? Anything that did not fall out would be classed as a “fixture” and therefore you should expect these items to be included in the sale and to be there when you move in, unless otherwise specified”.
Answering the original query of who was at fault, it is the seller’s solicitor’s responsibility to discuss with the seller which items are to be included in the sale and to obtain information relating to fixtures and fittings. They get the information from the seller, and usually use a standard form called a Fittings and Contents form (F&C). This form is completed by the seller and states which items are included in the sale, which items are to be removed from the property, and which items will cost extra. A copy of the form is supplied for review prior to the exchange of contracts, and should be attached to both parts of the contract signed by the seller and the buyer immediately before exchange.
If this form hasn’t been completed then it’s up to you, the buyer, to take the matter up in writing immediately with your legal adviser and the seller to check whether agreement can be reached and warning that the removal of any fixtures would constitute an actionable breach. You should also check the estate agent’s particulars and/or memorandum of sale to check what reference is made to such items as this will further strengthen your position.
You could involve the selling agents as sometimes a compromise can be reached, and insist on inspecting the property immediately prior to completion to check the contents. If the marketing brochure supplied by the estate agents is misleading in a manner that constitutes a breach of the Consumer Protection from Unfair Trading Regulations 2008, the estate agent and seller could be liable to criminal sanctions. Aside from this, there may be a separate claim against your legal adviser.
Sam Blackburn is the Head of Residential Property at Slater and Gordon in Manchester.
If you need expert legal advice when buying or selling property, contact Slater and Gordon’s Property Solicitors. We will ensure that all paperwork is completed carefully and correctly and make sure that your property transaction runs as smoothly possible. Call us on freephone 0800 223 0766 or contact us online and we will call you.