- If fixtures and fittings are removed after the buyer has inspected the property but before exchange of contracts, whether the contract includes them may depend on whether the seller has acted dishonestly
- Where fixtures and fittings are an important part of the property, ideally they should be described in a schedule to the sale contract
We have seen how a failure by the buyer to inspect a property contributed to the decision in Bashir v Ali that the buyer could not retain the "windfall" of an additional flat which was included in the property. He was not allowed to get more than he had bargained for. The following case illustrates how a failure to make a further inspection meant that, in fact, the buyer did not get as much as he thought he had bargained for.
The dispute in Wickens v Cheval Property Developments Limited arose on a sale by a mortgagee in possession. The property was worth £1.3 million and had notable features such as fireplaces, chandeliers and oak panelled doors.
On the day of exchange, the seller's agent telephoned the buyer to pass on a report they had received (following an external viewing) that a fireplace in the property appeared to have been damaged. The agent asked the buyer whether he would like to inspect the property again before exchange of contracts. Since one of the fireplaces had been damaged on his first inspection, the buyer assumed that this was the damage referred to, and declined the opportunity of a further inspection. In fact, further damage had occurred as a result of a break-in, and many items had been removed.
The sale contract stated that it included all fixtures and fittings. However, no schedule of fixtures and fittings was annexed to the contract. The buyer argued that the contract included all the fixtures and fittings which had been present when he inspected the property. He sought an abatement in the purchase price of around £300,000, which was the alleged cost of replacing the missing items. The seller contended that only those fixtures and fittings remaining in the property on exchange of contracts were included.
The court held that it could not be said that the parties were proceeding on the basis that the property was in the same state (or included the same fixtures and fittings) as previously inspected. The prudent course for the buyer, having received the information he had from the agent, would have been to re-inspect. On that basis, the expression "fixtures and fittings" in the contract for sale meant those present at the date of exchange.
Things to consider
The court ruled that in the ordinary case of a domestic seller who removes fixtures and fittings, saying nothing will amount to deceit, because there is a continuing representation that the property includes the items which were present when the buyer inspected. In this situation the buyer is contractually entitled to have the property conveyed together with the fixtures and fittings which he saw on inspection, unless the seller has told the buyer of the changed position before exchange of contracts. The seller would not be allowed to rely on any exclusion clauses in the contract, because it is not possible to exclude liability for fraud.
In the Wickens case, the seller had not removed the fixtures and fittings itself; the items had been taken as part of a break-in. However, the judge gave permission for the case to proceed to trial on the question of whether the seller's agent had deliberately withheld information during the telephone call on the day of exchange.