Before You Pack the Solar Inverter: Who Owns What in SA Property Deals?

Buying or selling a property can come with plenty of arguments over what is included in the deal. Does the chandelier stay? What about the blinds? Can the seller take the solar panels? And what happens to an inverter installed by a tenant?

In South African law, the answer is not simply “if it is screwed down, it stays” or “if you can unplug it, it goes”. The legal question can be more complicated.

The important concept is accessio, or accession. In simple terms, a movable item can become part of an immovable property when it is sufficiently attached to the property.

South African courts generally consider three traditional factors when deciding whether this has happened: the nature and purpose of the item, the manner and degree of its attachment, and the intention behind the attachment. Courts have stressed that there is no single rule that works for every situation and that each case must be considered according to its particular facts.

The 3 Main Questions Courts Consider

1. What is the nature and purpose of the item?

The court can look at what the item is and what it was intended to do.

For example, something specifically designed to become part of a building may be more likely to be regarded as a fixture than an ordinary movable item brought into the property for someone’s convenience.

A built-in kitchen installation is therefore very different from a freestanding piece of furniture.

2. How is it attached?

The court can consider how the item is attached, how firmly it is connected to the property and how easily it can be removed.

But there is an important warning: the fact that removing something causes a few holes or requires repairs does not automatically make it a fixture.

Likewise, an item does not necessarily remain movable simply because it can technically be removed.

The method and degree of attachment are important factors, but they are considered together with the other circumstances.

3. What was the intention behind attaching it?

The intention behind the attachment can be particularly important.

The question is essentially whether the circumstances indicate that the item was attached with the intention that it should become a permanent part of the property, rather than merely being attached temporarily.

South African case law has repeatedly considered intention together with the nature of the item and the manner and degree of its attachment.

So, What Normally Stays?

There is no universal list that applies in every property transaction, but some everyday examples are easier to understand.

Kitchen appliances

A freestanding washing machine or dishwasher that can readily be disconnected will generally be regarded as a movable item.

An appliance deliberately integrated into kitchen cabinetry may be treated differently, particularly where it has effectively become part of the fitted kitchen.

The exact circumstances matter.

Stoves and ovens

A freestanding stove will generally be treated differently from a hob and oven deliberately installed as an integrated part of the kitchen.

However, the physical installation and the terms of the sale agreement should always be considered before assuming that an item automatically stays.

Blinds and curtain rails

Blinds, curtain rails and similar items can cause arguments because they are often screwed or otherwise attached to the walls.

Their attachment does not, by itself, provide an automatic answer. The nature of the item, the way it was installed, the circumstances and the intention behind the installation can all be relevant.

This is exactly why it is better to state clearly in the sale agreement whether particular blinds, curtains or rails are included.

Solar panels, inverters and batteries

Solar equipment is another modern grey area.

A permanently installed system — for example, roof-mounted solar panels connected to an inverter and electrical installation — may be regarded as having become part of the property, depending on the circumstances.

But do not assume that every solar system automatically belongs to the property.

Ownership and contractual arrangements can be important. Equipment may, for example, be subject to a lease, finance arrangement or another agreement. The manner of installation and the intention behind the installation can also matter.

If a solar system is involved in a property sale, spell out exactly what is being sold and what is being removed.

What About Buyers and Sellers?

As a general rule, an item that has become part of the immovable property through accession will ordinarily go with the property.

But the sale agreement matters enormously.

South African property sale agreements commonly contain clauses dealing with fixtures and fittings, and courts have considered disputes involving specific items identified in those agreements.

That means buyers and sellers should not rely on assumptions about what “normally” stays.

If the seller wants to remove a particular item, the safest approach is to identify it clearly in the written agreement.

Likewise, if the buyer expects something to remain, it should be recorded in writing.

Put it in writing

For example, instead of simply saying:

“Solar system included.”

the agreement should identify what that means — such as the panels, inverter, batteries, mounting equipment and associated equipment — where appropriate.

The same applies to chandeliers, blinds, security systems, pool equipment, generators and other potentially disputed items.

What About Tenants?

The position between a landlord and tenant is different from an ordinary sale between a buyer and seller.

A tenant may, in appropriate circumstances, have a right known as ius tollendi — essentially, a right to remove certain things the tenant has attached to leased premises.

But this is not a blanket right to remove anything the tenant has installed.

The tenant’s rights can depend on the nature of the attachment, the circumstances in which it was installed and, importantly, the terms of the lease agreement.

A lease may contain provisions dealing with alterations, additions, fixtures and fittings, including requirements concerning the landlord’s consent, removal and the repair of damage when the lease ends. South African cases demonstrate how important such contractual provisions can be.

So, if a tenant installs an air-conditioning system, security equipment, shelving, solar equipment or another attachment, the tenant should check the lease before assuming that it can simply be removed when moving out.

What Happens When the Tenant Leaves?

There is no safe “everything left behind automatically belongs to the landlord” rule that should be applied without looking at the circumstances and the lease.

The parties’ contractual rights and obligations can be important, particularly where the lease regulates alterations and fixtures.

This is another reason why tenants should obtain the landlord’s written consent before making significant alterations or installations and should keep copies of any agreements dealing with ownership and removal.

The Safest Approach for Everyone

The easiest way to prevent a fixture-and-fitting argument is to remove the guesswork before the deal is signed.

For a property sale, consider having a detailed fixtures-and-fittings list attached to the Offer to Purchase or incorporated into the written agreement.

Depending on the property, the list could deal with:

The same principle applies to leases. If a tenant is installing something substantial, the lease or a written addendum should make it clear who owns the item, who is responsible for maintenance and what happens when the lease ends.

Don’t Leave It to “Common Sense”

What seems obvious to one person may not be obvious in law.

A seller may think, “I paid for those solar panels, so I am taking them with me.”

A buyer may think, “They are attached to the roof, so they are part of the house.”

Both parties can end up arguing over the same item.

South African law does provide principles for deciding whether a movable has become part of immovable property, but courts have emphasised that the answer depends on the particular facts rather than on one simple rule.

The practical lesson is simple: if there is any doubt, put it in writing.

Before signing the Offer to Purchase or lease, make sure everyone knows exactly what stays, what goes and who owns any disputed equipment.

That small bit of paperwork can prevent a very expensive argument after the keys have changed hands.

When in doubt about a valuable fixture, installation or disputed item, get advice from a South African property-law professional; contact us before signing the agreement.

Remember: Clear communication is key! Whether you’re a landlord, tenant, buyer, or seller, taking the time to discuss expectations and clearly define permanent fixtures can save you a lot of headaches in the long run. So, don’t be shy – talk it out, and enjoy a smooth and stress-free property experience!