7.4 Movable & Immovable Property, Fixtures, the Alienation of Land Act & Deeds Registration

7.4 Movable & Immovable Property, Fixtures, the Alienation of Land Act & Deeds Registration

Why this matters for PDE5: Recent papers tested the movable/immovable boundary directly (built-in cupboards as fixtures), the Alienation of Land Act writing requirement, and the effect of deeds registration. Case studies also examine the classic dispute: a seller removing expensive fixtures — fixed solar panels, for example — that were never excluded in the offer to purchase.

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1. Movable vs. Immovable Property

South African law divides property into two classes with different transfer rules:

The practitioner's drafting duty follows directly: the deed of sale governs the immovable; anything movable the parties want included (or excluded) must be listed expressly — assumptions are where post-transfer disputes are born.

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2. Fixtures and Fittings: The Common-Law Tests

A fixture is a movable that has become immovable by attachment to the land or building. Courts apply three cumulative tests:

1. Nature and degree of attachment: how firmly is the item fixed? Would removal cause damage to the item or the building?
2. Purpose of the attachment: was the item attached for the permanent improvement of the property, or for the temporary use/enjoyment of the item itself?
3. Intention of the owner (as objectively inferred): did the person who attached it intend it to become a permanent part of the property?

Applied to the exam's favourite examples:

• Built-in cupboards: nailed/screwed into the structure and designed for that room — fixtures, included in the sale unless excluded.
• Curtain rails: screwed in and ancillary to the building — fixtures. Curtains themselves: movable fittings; parties should list them.
• Fixed solar heating panels and inverters: bolted to the roof and wired into the installation — strong fixture indicators. A seller who wants to remove them must exclude them expressly in the offer to purchase; silence means they transfer with the property.
• Remote controls, keys, and pool equipment: accessories that serve the property — conveyancing custom treats them as included accessories; again, list them to avoid argument.
• Freestanding fridge, washing machine, garden furniture: movables, excluded unless expressly included.

Principal's drafting rule: every offer to purchase leaving your enterprise must contain a completed fixtures and fittings schedule (stove, blinds, pool cleaner, solar system, satellite dish, alarm, garden features) with "included/excluded" marked per line. One completed schedule kills ninety percent of these disputes.

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3. The Alienation of Land Act 68 of 1981

Section 2(1): The Writing Requirement

No sale of immovable property is of any force or effect unless it is:

1. Reduced to writing in a deed of sale (offer to purchase); and
2. Signed by the parties — or by their agents acting on written authority.

Consequences for practice:

• A verbal "deal" on a house is void, however sincere the handshake; an agent must never report a property "sold" before signature.
• Electronic execution is possible: under the Electronic Communications and Transactions Act 25 of 2002, a signature required by law must be an advanced electronic signature where the parties sign electronically.
• The suspensive conditions (bond approval, sale of the buyer's home) must also be written, with clear deadlines and fulfilment mechanics.

Section 29A: Residential Cooling-Off Right

Where the purchase price of residential property is R250,000 or less and the buyer is a natural person acquiring for own use, the buyer has a 5-business-day cooling-off right to revoke the offer by written notice. Principals dealing in low-value stock must diarise this period before treating a sale as unconditional.

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4. Deeds Registration and Real Rights

Ownership of immovable property is not proven by possession or the contract — it is acquired and proven by registration:

1. Real rights vs. personal rights: a deed of sale creates a personal right (a claim against the seller to transfer). Only registration of the title deed in the Deeds Office creates and transfers the real right of ownership, effective against the whole world.
2. Notice function: registration serves as public notice that the real right has been legally transferred; anyone may inspect the register. A buyer who registers takes priority over later claimants.
3. The conveyancer's role: only a practising conveyancer may prepare and lodge transfer documents; the Deeds Office examines and registers the deed, issuing the new title deed.
4. Title deed inspection before mandate: practitioners must inspect the current title deed before listing: it discloses the registered owner (does the seller own it?), servitudes, bonds, interdicts, and conditions (e.g., restrictive clauses) that materially affect marketability — exactly the step the exam case study flagged when the practitioner "notices that the title deed has not yet been inspected."

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5. Applied Case Note

Scenario (after the May 2026 paper): a buyer asks whether built-in cupboards, remote controls, curtain rails, and fixed solar heating panels are included; the seller wants to strip the solar panels, which the offer to purchase never mentioned. Advice: apply the three fixture tests item by item — cupboards, rails, and fixed panels are fixtures passing with the sale; remotes are accessories to be listed. The seller may not remove the panels: fixtures transfer by default, and the seller's remedy was an express exclusion clause, now too late. The practitioner must also confirm the Alienation of Land Act formalities (written, signed deed) and inspect the title deed for bonds, servitudes, and ownership before lodgement.