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Property Law College - Case Study Example

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You have a successful business in a new housing estate and because you live so far away you decide to buy a property closer to the shop. You sell your present house and contracts have been exchanged. You decide on a town house so that you can spend more time in the business than looking after a big yard…
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Download file to see previous pages Also included in the contract were tools that were in the garden shed as you did not think you would need them. However, you now still have a small yard and need some tools. These are not fixtures and you believe that you are able to take them. You and your partner move into the town house holding the property as joint tenants. Sadly your partner dies some weeks after you bought the property.
The house is in contract and the townhouse does not have an island bench in the kitchen and client wishes to take the one out of the kitchen in the sold house and move it to the new one. This would mean damaging the floor. Australian law defines a fixture as: " Items such as hot water systems, built-in cupboards, bath, stove, etc" (Australian Real Estate). The common denominator with the afore -mentioned list is that the items cannot be removed from a property without causing damage. Accordingly, since the floor of the house would be damaged upon its' removal, the island bench is considered to be a fixture. When land is transferred with a house, the value of all the tenant's fixtures is now to be included in calculating the unencumbered value of land. This law reverses the Victorian Supreme Court decisions in the Vopak Terminal case (where substantial storage tanks were sold separately to another party) and the Uniqema case (2004) (but only on the issue of tenant's fixtures). Here, the seller has already contracted the sale of the house. The contract price was in part, based upon the value of the house and its' fixture. If the client wishes to depart with the island, they should either re-negotiate the contract or make a concession for the floor repairs (in the purchase price) that will result from removing the island. Additionally, the seller would be well advised to issue a credit towards the purchase price. In no events may the seller simply take the island. Fixtures, according to the Australian courts become part of the land and as a consequence, the realty, and must therefore pass to the buyer with the sale of the property. Some sort of concession must be made either at closing or before closing in order for the seller to not be in violation of his contract.
II. What is the legal position in relation to the curtains
A leading case in this area is Australian Provincial Assurance Co. Ltd. v. Coroneo. There the Court addressed the removal of theatre chairs, movie projection equipment and a generator seized from a theatre. The court reasoned that that if a chattel is actually fixed to land to any extent, any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon the person who asserts that it is not. If it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is upon the person who asserts that it is. Here because the buyer is looking to have the curtains, which are not actually affixed to the land to any extent, he bears the burden of proof. The test of whether a chattel is a fixture was determined by the court to be whether it had been fixed with the inten ...Download file to see next pagesRead More
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