What Is Vacant Possession?

If you have anything to do with the sale or letting of property, "vacant possession" is a term that you will come across fairly frequently. But what does it really mean - how "vacant" must the property be for vacant possession to have been given?

When Does Vacant Possession Have To Be Given?

It is common to see an express term that vacant possession will be given, though in the absence of express wording the requirement may still be implied. Vacant possession usually has to be given in the following circumstances:

When property is sold or a lease is granted When a tenant vacates at the end of the term When a tenant breaks a lease early, in which case vacant possession may well be a condition of the break The meaning of vacant possession is relevant to all of these situations, though the consequences of failing to give it vary. The consequences can be particularly serious where vacant possession is a condition of exercising a break.

What Does Vacant Possession Actually Mean?

A property is given with vacant possession if it is empty of chattels (moveable objects) and of people and no-one else has the right or ability to occupy or to possess it. However, depending on the circumstances, vacant possession may still be given even though these requirements haven't been fully complied with. It's helpful to look at some examples of when vacant possession has and hasn't been given, but it's important to keep in mind is that every situation turns upon its own particular facts.

Empty Of Chattels For vacant possession to be given the property must be empty of chattels (for example furniture, pictures and boxes). If items are left in the property, the person giving vacant possession is deemed to be claiming a right to use the property for his own purposes, as a place to store his goods. However, this requirement is likely only to be breached if any of the chattels remaining substantially prevent or interfere with the enjoyment of the right of possession of a substantial part of the property.

For example, a substantial amount of rubbish will breach this requirement (Cumberland Consolidated Holdings Ltd v Ireland (1946)) while a few empty pallets and some dismantled racking in a large warehouse probably won't (Legal & General Assurance Society Limited v Expeditors International Limited (2006)).

It's also important to understand the distinction between chattels and fixtures: the traditional test of whether an item is a chattel or a fixture is to look at the...