Archive for July, 2011

‘Vacant Possession’: and the meaning is:-

Many have pondered over the meaning of the words ‘vacant possession’ and judges have struggled with the concept created by their use.  They frequently occur in property agreements be it a lease (e.g. in a covenant to yield up, a rent review or a break clause), a sale and purchase contract or an option agreement.  Lord Justice Rimer in the Court of Appeal case NYK Logistics (UK) Limited v Ibrend Estates BV [2011] EWCA Civ 683 had no such problems, however and said:

“It means that at the moment that ‘vacant possession’ is required to be given, the property is empty of people and that the purchaser is able to assume and enjoy immediate and exclusive possession, occupation and control of it.  It must also be empty of chattels, although the obligation in this respect is likely only to be breached if any chattels left in the property substantially prevent or interfere with the enjoyment of the right of possession of a substantial part of the property.”

The case concerned a tenant’s option to break its lease conditional upon paying rent due up to and including the termination date and having delivered up vacant possession of its premises.  It served a valid notice and had it complied with the conditions, the lease would have been determined.  However, it was side tracked by service of a schedule of dilapidations with which, where valid, it was determined to comply.  Two days before the termination date, it met wth the landlord’s agent and agreed a few outstanding items required attention.  It failed to finalise them before the termination date and its workmen remained on site.  The property was not therefore empty of people and vacant possession was not delivered up.

If you wish to hear more about vacant possession why not contact Hatherleigh Training?