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Careful consideration should be given to the obligation to provide vacant possession in order to avoid additional costs and potential litigation.NYK Logistics (UK) Limited v Ibrend Estates BV [2011] Riverside Park Limited v NHS Property Services Limited [2016]The content of this article is provided for information purposes only and does not constitute legal or other advice. The recent case of Scott v Southern Pacific Mortgages Ltd highlights the risks associated with buying a property which has tenants or occupiers other than the legal owner living in it. The concept of vacant possession is sometimes glossed over by real estate practitioners, but you ignore it at your peril. We have a wide range of expertise to support business and private clients in all areas of law. (JavaScript must be enabled to view this email address) If you need legal advice about your commercial lease or are worried about forfeiture or possession proceedings then the To forfeit a tenancy the commercial lease must contain a clause which allows the landlord to forfeit the tenancy under certain circumstances, such as rent arrears. To avoid potential breaches of contract or of lease covenant, sellers and tenants should be fully aware of the terms of any contractual commitment to deliver vacant possession.

There have been a number of cases in the UK where the meaning of vacant possession has been discussed. © Mason Hayes & Curran LLP 2020 The term vacant possession is not defined in legislation, nor is there a clear Irish authority on what vacant possession means. Covid-19 and possession of commercial properties. (JavaScript must be enabled to view this email address). OTS Solicitors is an internationally recognised law firm, based in the City of London. If there is a forfeiture clause, then the landlord may regain possession of the property by:It is common for a commercial property agreement to contain forfeiture clauses to provide the landlord with a way to quickly regain possession of the property if a tenant is in breach of the tenancy agreement.In March 2020, the government announced that commercial tenants who cannot pay their rent because of Covid-19 would be protected. The Act also says that if an order was made in a court order granting possession between 26 March 2020 and 30 June 2020, possession may now only be gained after 30 June 2020, thus giving some protection to commercial tenants who are already the subject of forfeiture proceedings or worry that forfeiture proceedings may be commenced.A relevant business tenancy covered by the Act is a tenancy defined by the Landlord and Tenant Act 1954 and includes:Under the Coronavirus Act 2020 the earliest any forfeiture action for non-payment of rent can be started against a tenant of commercial property is the 1 July 2020.Landlord and tenant solicitors emphasise that the 2020 Act only protects commercial tenants against forfeiture for non-payment of rent. The three month period may be extended by the government. It does not protect against forfeiture for breach of covenant.
There have been a number of cases in the UK where the meaning of vacant possession has been discussed. From the Ontario Real Estate Association. By clicking "OK", or any link on this page you consent to our use of cookies as described in our . In March 2020, the government announced that commercial tenants who cannot pay their rent because of Covid-19 would be protected. Where possession is sought under Section 21, an accelerated procedure can be used which is a straightforward and inexpensive procedure for getting possession … It is particularly relevant to land sales; the grant, termination or transfer of a lease and, in some cases, to licenses to occupy. If they did that, the seller would not be able to sell to you with vacant possession and so would be in breach of contract — in which case you could repudiate the contract, ie refuse to complete because of the seller’s breach, and the seller would then need to take action to remove the tenants. Clause 2 of the Agreement of Purchase and Sale (APS) is a small but powerful item with huge ramifications if handled incorrectly.

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Vacant possession will normally appear as a specific term in a land agreement, but it may also be implied by law. Simply put, vacant possession means that the relevant person, whether that is a purchaser or landlord, is in a position to enjoy the property undisturbed.If a seller or tenant continues to use the property in a manner that is inconsistent with vacant possession or if there is an impediment, physical or otherwise, to enjoying the property, vacant possession may not have been delivered.The UK courts have held that vacant possession was not provided in the following circumstances:Failure to deliver vacant possession when a party is obliged to do so can result in serious consequences. However this is not always the case, which can cause problems. The Coronavirus Act 2020 (The Act) provides that, if a commercial rental payment is missed, forfeiture action by a landlord is suspended for three months (until the 30 June 2020).

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