Vacant Possession Explained - A Guide For Buyers

If you are looking to buy property, you might see a lot of listings say ‘available with vacant possession’. But what does this mean, and how could it affect you as a property investor? My guide will explain everything you need to know about vacant possession.

Table of Contents

What is vacant possession?
What does ‘available with vacant possession’ mean?
What does ‘tenants in situ’ mean?
How do you enforce vacant possession?
Buying a property with vacant possession
Selling a property with vacant possession
FAQ: What can I do if there is furniture or rubbish left behind?
FAQ: Should a property with vacant possession be cleaned before the completion date?

What Is Vacant Possession?

If a property is sold with ‘vacant possession’, it means that the property must be empty of dwellers and possessions on the date of completion. The completion date is when the property officially changes hands from the seller to the buyer.

What Does ‘Available With Vacant Possession’ Mean?

If you see this on a property listing, it means that the seller has agreed that the property will be empty on the day that the buyer takes possession of the property. This includes all dwellers or tenants, plus any ‘chattels’ i.e. furniture (unless it has been agreed that some items stay behind – often built-in items like ovens are included with the property) and any rubbish.

What Does ‘Tenants In Situ’ Mean?

If a property is listed with ‘tenants in situ’, then it is being sold as a going concern with tenants continuing to live in the property once it has sold. This is not unusual; and can be desirable for many buyers, as they can start earning money from rent right away. Some buyers may choose to continue renting to these tenants or evict them at a later date. The tenants existing contract will stipulate when they can be lawfully evicted from the property.

Buying A Property With Vacant Possession

The contracts are normally exchanged a few weeks before completion, and the actual completion date is often agreed upon at this time. When buying a property with vacant possession, it is wise to inspect the property as soon as you take ownership and get the keys. This will allow you to make sure the property is definitely vacant.

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Selling A Property With Vacant Possession

If you are the one selling a property with vacant possession, you need to make sure you or our tenants have moved out by the completion date, and any items removed from the property. If you fail to do this, you could be subject to legal claims from the new owner.

FAQ: Should A Property With Vacant Possession Be Cleaned Before The Completion Date?

This is not necessarily the case. If a tenant has occupied the property, it could be part of their contract that they must leave the property ‘clean and tidy’ on their departure, although this is subject to interpretation. Beyond this, the contact between the buyer and seller will usually only say that the property should be ‘empty’ with the subject of cleanliness not addressed. If the property is left in some kind of unsanitary state, then it’s worth contacting your conveyancer for legal advice and getting some quotes from a specialist cleaning company.

How Do You Enforce Vacant Possession?

If a property is sold with vacant possession but on the day of completion, dwellers or furniture remain in the property, this can be a problem. In some cases, the dweller, whether it be the previous owner or their tenants, is unable to move out by the completion date due to circumstances out of their control. While this can be frustrating for you as the new owner, it is wise to come to a new agreement in which they leave the property at a later date.

In other cases, it could be that tenants remain in the property either as squatters or trespassers or because they have not been given adequate notice to vacate the property.

How To Enforce Vacant Possession Against Residential Tenants

Firstly, talk to your conveyancer who can advise you on your legal rights as owner, and the best course of action to take. First, a notice must be served to the tenants informing them they need to leave within a certain period.

If the tenant does not vacate the property by the deadline, then you need to make a possession claim by applying to the courts for a possession order. This also gives the tenant a chance to appeal, so if they have not been given enough time to vacate by the previous tenant, this might mean they could succeed in their appeal. At this point, your solicitor or conveyancer will be able to advise you further on your rights and any chance of reparations from the seller. After this, it may be possible to obtain a writ of possession or a warrant that permits bailiffs or High Court Enforcement Officers to evict tenants from the property.

This whole process can take several weeks or months depending on the individual circumstances. Writs of possession and court orders can be lengthy and difficult to obtain so it is advisable to seek a resolution directly with the tenants before it comes to this.

Enforcing Vacant Possession Against Trespassers Or Squatters

As trespassers or squatters have no legal claim to a property, it is usually easier to evict them than previous tenants. You can usually obtain a writ of possession right away if the property is occupied by trespassers or squatters – again, seek legal advice at this point from your solicitor or conveyancer.

FAQ: What can I do if there is furniture or rubbish left behind?

Luckily, this is an easier fix than previous tenants occupying the property. The first step is to contact the seller and ask them to remove it. If they don’t comply, then it is wise to remove and dispose of the items yourself. Any costs incurred can usually be claimed back from the seller if the contract stipulates they should have removed them on or before the completion date. Taking them to court could cost you more in the long run, so weigh up your options carefully.

Note: If there is only a small amount of items or rubbish left behind, you may as well get rid of it yourself. This is due to the de minimis rule, aka ‘de minimis non curat lex’ or ‘the law does not care for small things’. This is a legal principle that allows courts to dismiss trivial matters from litigation. So for a few small items that can be disposed of easily, then your time could be wasted pursuing any reparations.

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