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PROPERTY INSIGHT: Alternative Power Supply Installations
South Africans are known to be a very resilient nation and often have to rely on their own means to fill in the gaps where service levels of basic needs lack. Every nation has its own troubles and tribulations, but the way a nation responds to these are key to endure the inevitable.
South Africa has seen its fair share of these events, but always seem to rise above the crisis and come out the other side stronger and unified in victory.
The latest crisis that South Africans are facing is the current power crisis prevailing nationwide. And as expected, the market quickly recognized the opportunity to provide alternative options to assist the public with additional power generating or power saving appliances.
These include the use of petrol generators, solar water heaters, battery powered inverters and PV installations, amongst others.
Where these type of alternative power supply installations were usually an exception to the norm, it has now become a common feature in properties across the country and should therefore be considered an imperative part of any property transaction – whether it is included or excluded from the transaction.
Although the Property Practitioners Regulatory Authority (PPRA) has not yet included any reference to such alternative power supply (APS) in their mandatory ‘Property Condition Report’, it is highly advisable that this forms part of every Property Practitioner’s check-list when taking a mandate, and subsequently included in any sales or lease agreement.
By using the common ‘fixtures and fittings’ test, it is debatable if such an installation is deemed a fixture, or if it was the intention of the client to merely keep it movable. The tried and tested method to determine what is classified as fixtures and fittings, is to figuratively turn the property on its roof and whatever stays put, can be deemed a fixture or fitting. This rather amusing idea has been extremely helpful in the past and by being completely transparent with clients and giving them a visual representation of what can be expected (imagine a house upside down), many disputes have been resolved and even avoided altogether.
However, the installation of an APS may well fall outside of this category, because although an APS will in most probability remain fixed in an upside-down house, the intention of the client takes priority. The mere function of such appliance poses a tremendous safety risk if not done by qualified and accredited installers, and therefore the permanence of any APS can be argued. For example, there is a difference between a trolley-inverter that can be moved around the house, and a statically placed inverter that plugs into the main distribution network of the home. Both of these serve the same purpose – to provide alternative power supply in the event of a power outage. In the ‘fixtures and fittings test’ these will have opposite outcomes and should therefore be very clearly addressed by the client before any transaction takes place.
Currently there is no default position in terms of whether any type of APS is deemed a movable or a fixture. And unless tested in court, any uncertainty can be avoided if properly declared from the outset. It would be as easy as ‘included’ or ‘excluded’ from the agreement.
This inclusion or exclusion may well be a deal-maker or deal-breaker – depending on the needs of the clients. Property Practitioners are therefore encouraged to keep an eye out for any APS and address it accordingly in their negotiations between clients.
Bronwyn Scholtz
Attorney & Notary (LPC No. 97847)
Professional Property Practitioner (PPRA No. 0486102)
(Part II to follow : Alternative Power Supply Installations – Certificate of Compliance)
Provided by Van Zyl Kruger
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