What Does Vacant Possession Mean?

mariam-abu-hussein
Mariam Abu HusseinLegal Assessment Specialist @ Lawhive
Updated on 14th November 2023

If you’re in the process of buying or selling a house, you might have heard the term vacant possession. But what does it mean?

what-does-vacant-possession-mean

What is vacant possession?

Vacant possession means a buyer and a seller have agreed a property will be empty of tenants or occupiers by the date of completion.

It ensures you have complete control over your new space, free from any lingering occupants or renters, from the day you move in.

What does “available with vacant” possession mean?

On the other hand, "available with vacant possession" means the property is currently occupied but will be empty when the sale is finalised. In simpler terms, the seller takes care of  removing any tenants or occupants before handing over the keys to you. 

Understanding these terms' differences is essential to avoid confusion or misunderstandings when selling your property.

Buying or selling a property with tenants in situ

When you're buying or selling a property in England and Wales, there's something called the "Standard Conditions of Sale." These conditions allow you to sell a property in two ways: with or without "vacant possession." 

If you go for the "without vacant possession" option, it means there are people living in the property who have rental agreements that go beyond the date when the sale is supposed to be completed -  known as tenants in situ. In simple terms, if you're the buyer, it means you're okay with taking over the property with tenants already living there.

While this might sound a bit unusual, it's actually quite common. A property lawyer, also known as a conveyancer, can help you understand how this process might be a bit different from a regular property sale.

One thing that changes is that the seller has to tell you about the existing rental agreements and give you any important documents related to those rental agreements. Once you have these documents, you and your conveyancer can look at them and ask the seller any questions you might have.

If you're all good with what you see, the sale goes ahead as usual. You become the new "landlord" in those rental agreements, but it's a good idea to update and sign new tenancy agreements with both parties' names on them for clarity. 

Selling with vacant possession

If you're selling a property with "vacant possession," it's super important that you, as the seller, and any tenants you have, completely leave the property. That means taking out all your personal stuff, except what's agreed in the contract, by the day the sale is supposed to be finalised. Once the contracts are officially exchanged, you're legally bound to do this.

If you don't follow through with this commitment, you could be breaking the contract. And if that happens, the buyer might be able to take legal action against you. This rule isn't just about personal items; it also includes things like furniture and any leftover mess that might get in the way of the new owner moving in right away.

Buying with vacant possession

When you're buying a home with "vacant possession," it means the current owner promises that the property will be totally empty, with no people living there and no stuff left behind, by the day when the sale is supposed to be finished.

Usually, contracts are exchanged about a week or two before this completion date. During this time, the previous owner might still be living in the house, no matter what the situation is. But when you're buying with vacant possession, it's a must that the property is entirely cleared out by the completion day.

In some cases, you might be buying a property with vacant possession even if there are tenants living there right now. This means the owner has agreed to end the tenancy or not renew it and will make sure the tenants move out before the sale process is completed.

Common problems with vacant possession

When it comes to buying or selling a property, most of the time, everything goes smoothly once the contracts are exchanged. But there’s always a chance things can go wrong.

If you’re buying a property with tenants who are supposed to leave by the time the sale is complete, there may be a higher risk of problems. For example, the tenants might refuse to leave by the agreed date. 

Even if there are no tenants, the seller might not be able to vacate the property by the agreed date because their own moving plans fell through at the last minute. 

In any case, the buyer has legal protection and should be able to make a claim as long as it was agreed that they’d get vacant possession when contracts were exchanged. 

For sellers, there’s a risk that buyers might make a claim if you don’t leave the property on time. Therefore, it’s a smart move to plan for the end of a tenancy well before the completion date, perhaps even before contracts are exchanged, so you have enough time to make sure the property is empty and in the right condition for the new owner. 

There are different options to how you can do this, depending on the type of tenancy agreement in place, such as eviction - but it's super important to follow the proper legal process and understand the rights of your tenants when you do this.

If you are buying a property with tenants in situ, it’s wise to get specialist legal advice from a solicitor about the tenancy agreements you will be taking on.

For further information, advice or help with vacant possession, we have a range of consultant solicitors available to work with you on your property matters and provide affordable, clear advice. Get in touch with us today to find out how we can help you. 

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