Based on the general practice guidelines in real estate, there seem to be some generally accepted rules when it comes to permanent fixtures. In Macdonald Ltd Appellants v Radin, the three considerations were looked at when answering the question as to when a movable article becomes immovable through the attachment or annexation thereof by an individual. It seems like there is no closed list of items which would constitute permanent fixtures or improvements.
Further, the context is important: the parties (landlord and lessee) would need to clearly define their objectives and rules regarding the improvements in their contract. It is best to do this at the start to mitigate any disputes at a later stage. Estate agent firms follow the general practice of having a set list of items in an annexure to their agreement which specifically sets out what is a permanent fixture and what is not.
WHAT ARE PERMANENT FIXTURES?
From the stated case above the following three considerations are borne in mind when determining the permanency of a fixture or improvement:
- Firstly, the nature of the attachment – the question is whether the fixture intends to serve the land or structure on a permanent basis.
- Secondly, the purpose of the attachment is looked at.
- Thirdly, the manner in which the attachment took place is considered – the rules of practice and logic dictate that if the fixture or fitting is impossible to remove, very difficult to remove, or if the removal would damage the structure or building, the fixture is regarded as permanent. Examples (which is once again not a closed list) of a permanent fixture include tiles, bolts, television fittings such as flush mount brackets with padlocks or any device with padlocks, certain screws, or fibre optics, etc.
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