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In assessing whether an object is a fixture, or a chattel, consideration should be given to the ability to move the object without causing damage to itself or the land or without leaving evidence that it was there.
If the object can be moved without causing damage or leaving evidence then a court will often conclude the item is a chattel, however a court will always evaluate the overall circumstances to arrive at a determination.
Typically, these are barbecue areas, curtain rods, curtains, air conditioners and dishwashers. The Director of GM Law Gerard Pagliaro noted that in their experience often disputes arise over dishwashers even though courts have previously determined that these are fixtures and therefore should stay with the property:
Therefore, the view of GM Law is to list a dishwasher as an included chattel since although it is a fixture and doesn’t need to be identified as an included chattel, there are often arguments between buyers and sellers about this item.
In property transactions, all ‘fixtures’ are automatically part of the property sale without needing explicit mention in the Contract of Sale. So, buyers should ensure when they carry out their final inspection before settlement that the fixtures have been left on the property and remain intact. You should also ensure any chattels that are to remain with the property are specifically listed. Gerard’s comment:
Arguments can often arise between a buyer and a seller in circumstances where a seller mistakenly believes something is a chattel (and so takes it from the property) or the buyer believes something is a fixture and so expects the seller to leave it. If in doubt you should identify items, the seller wants to take as excluded fixtures and identify items the buyer wants to keep (e.g., pool equipment) as included chattels.
On one occasion we had a seller who stripped a media room of all its contents- including TV’s, projector etc., leaving only the brackets upon which they hung from the wall. Ultimately the items were returned but not without the buyer having to offer the seller some cash to get him to cooperate. All along the buyer was told the items would remain with the property. This issue could have been avoided by listing all the contents in the contract as included chattels.
Gerard Pagliaro
If there is property being left to a particular beneficiary in a will, but the contents of the property are left to someone else, this can potentially lead to a dispute between beneficiaries over what is a chattel and what is a fixture. In this scenario the contents would imply chattels, but all the fixtures are considered part of the property. Therefore, it’s a good idea to be specific particularly if you believe there are any items that are likely to be disputed.
Gerard Pagliaro
You can email us at AgentSupport@gmlaw.com.au to get urgent personalized support.
You can email us at AgentSupport@gmlaw.com.au to get urgent personalized support.
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