Disputes Over Inclusions and Exclusions in a Sale

One of the more common flashpoints in a property settlement has nothing to do with finance or title, and everything to do with what was actually included in the sale. A buyer arrives for a pre-settlement inspection to find the dishwasher missing, the curtains gone, or a garden shed removed, and assumes the seller has taken something that was meant to stay. Sometimes it is a genuine misunderstanding. Sometimes an agent's verbal promise never made it into the contract. Either way, resolving it depends heavily on what the contract of sale actually says, not on what either party remembers being told.

Fixtures, Fittings and the Grey Area Between Them

Property law draws a distinction between fixtures, items permanently attached to the land or building, and chattels, movable items that happen to be on the property. Fixtures generally pass to the buyer automatically as part of the land, while chattels only transfer if they are specifically listed in the contract. The trouble is that plenty of household items sit in a genuine grey area. A built-in dishwasher is usually a fixture, but a freestanding one is a chattel. Light fittings, blinds, and even some wall-mounted televisions can go either way depending on how they are attached and how the contract describes them. This is exactly why the inclusions and exclusions schedule in a contract needs to be specific rather than assumed.

Why These Disputes Happen

Most disputes trace back to one of a few causes. The contract's inclusions list may be vague, listing "light fittings" without specifying which ones, or "as inspected" without a clear inventory attached. An agent may have made a verbal representation during a home open that was never written into the contract, which unfortunately carries little weight if it contradicts the signed document. Sometimes a seller genuinely believes an item is theirs to take, such as a garden ornament or a shed they built themselves, without realising it has become a fixture attached to the land. And occasionally, a seller simply changes their mind late in the process and hopes nobody notices before settlement.

What Buyers Should Check Before Exchange

The best time to resolve an inclusions dispute is well before it becomes one. Before you exchange, walk through the property with the contract in hand and confirm that every item you are relying on is specifically named in the schedule, not just implied by what you saw during an inspection. If an agent tells you something verbally is included, ask for it to be added to the contract in writing before you sign. MoneySmart's general guide to buying a house is a useful starting point for the broader pre-purchase checklist this sits within, alongside your building and pest inspection. A residential purchase contract should leave no ambiguity about what stays and what goes.

What Happens If You Discover a Problem After Exchange

If you notice an inclusion is missing during a pre-settlement inspection, raise it with your conveyancer immediately rather than confronting the seller or agent directly. Photograph the current state of the property and compare it against the contract's schedule. Your conveyancer can then write formally to the seller's conveyancer, either requesting the item be returned or reinstalled before settlement, or negotiating a price adjustment to reflect its absence. This needs to happen before settlement occurs, because your negotiating position weakens considerably once the transaction has completed and the seller has been paid.

What Happens If the Item Was Never in Writing

Disputes get harder when the disagreement rests on something that was only ever discussed verbally. Contracts for the sale of land generally need to be in writing to be enforceable, and a court or tribunal will usually give far more weight to the written schedule than to a recollection of what an agent said during an open home. This does not mean a verbal promise is worthless, particularly if there is a text message, email or other written record of it, but it does mean buyers should not rely on memory alone. If a dispute cannot be resolved between the parties, it may need to go to a state tribunal or small claims process, which is a longer and more formal path than most people want to take over a dishwasher or a garden shed.

How a Conveyancer Helps Prevent This

A conveyancer's most valuable contribution here often happens before any dispute exists. Reviewing the inclusions and exclusions schedule line by line, querying vague descriptions, and confirming any verbal promises are added in writing before exchange removes most of the ambiguity that leads to arguments later. If a dispute does arise, having a conveyancer who understands exactly what was agreed, and who can communicate formally and calmly with the other side, usually resolves the matter faster than buyer and seller trying to sort it out themselves, especially once tempers are involved. This applies whether you are working through a standard purchase, a residential sale, or even a property transfer between parties who know each other well and assume goodwill will cover any gaps in the paperwork.

A Note for Sellers

Sellers benefit from the same clarity. If you intend to take a light fitting, a shed, or an appliance with you, say so explicitly in the contract before it is signed, and replace or patch anything you remove so the property is left in a reasonable state. Leaving this to a verbal aside with the agent, or assuming the buyer will not notice, is one of the more avoidable ways a settlement gets delayed or disputed right at the finish line.