Vacant Possession - What Does It Really Mean?
How often does a solicitor acting for a buyer receive from his client on the afternoon of the day of completion a telephone call along the following lines – “I have just moved into my new house and the place is a mess. The seller has just walked out and left pieces of furniture which I do not want and rubbish in the loft garage and back garden. Is there anything I can do?”
Unless a buyer is purchasing an already tenanted property as an investment, the contract for the sale of the property will always provide that the seller must give vacant possession at completion. This means that not only must the seller physically remove himself from the property on the day of completion but he must also remove from the property any fixtures fittings and furnishings which are not included in the sale together with his personal effects and all rubbish. Prior to exchange the seller will normally have provided to the buyer a fixtures and fittings form listing those items which are to be included in the sale and those which are to be excluded. Accordingly the seller should be in no doubt as to what he is to leave and what he must remove. Furthermore a prudent solicitor acting for a buyer would normally in pre-contract enquiries draw to the seller’s attention the obligation to give vacant possession at completion and to remove all his rubbish and unwanted goods from the property at completion.
Failure on the part of the seller to comply with this obligation is a breach of contract and the buyer would be entitled to claim from the seller the cost of having the unwanted goods and rubbish removed from the property. Unfortunately the cost involved is usually sufficiently low that if a seller failed to reimburse the buyer these costs the buyer would have to pursue the seller himself in the Small Claims Court; if the buyer wanted to instruct his solicitors to undertake the proceedings on his behalf, he would not be able to reclaim from the seller the legal costs incurred.
Perhaps a more practical approach would be for a buyer to arrange a visit to the property on the evening before completion or indeed on the morning of completion itself to check that the seller is in fact moving out of the property and intends to remove all unwanted goods and leave the property in a neat and tidy condition. A gentle reminder to the seller that failure on his part to do so could result in the buyer refusing to complete (thereby ensuring that the seller would be unable to complete his own related purchase) could well do the trick!
Paul Grindrod
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