What is Vacant Possession?

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When buying a property, vacant possession is a term you will come across frequently. But what does it really mean, and how “vacant” must the property be for vacant possession to be given.

REIQ’s Contract of Sale (Residential House and Land/Lots in a Community Titles Scheme) states the seller is required to give the buyer vacant possession of the land or property when the property is free from any physical impediment preventing the buyer from enjoyment.

A property is given “vacant possession” if it’s empty of chattels (moveable objects such as microwave, fridge, garden ordainments etc.) and of people / tenants, meaning no-one else has the right or ability to occupy or possess the property. 

A simple concept, but sellers must carefully consider the state of the property being sold and whether they can or can’t give vacant possession at settlement.

Coronis Conveyancing advise you, as the seller to carefully consider the following:

  • Are there any tenancies on or over the property?
  • What is the term of the tenancy? (i.e. fixed term, periodic)
  • When can you, and on what grounds can a Notice to Leave (Form 12) be given?
  • What is the end date of the tenancy?
  • Is the settlement date beyond the end date of the tenancy agreement?
  • Do I need the right to extend the settlement date to allow time to provide vacant possession?

 

There are significant risks and costs to sellers who can’t give vacant possession, and whilst not an exhaustive list, it’s important you carefully consider the above questions before entering a contract of sale.

If the buyer is unable to have vacant possession, the seller could face the following consequences:

  • An inability to seek and obtain an order for specific performance
  • An order for damages and recovery of the deposit in favour of the buyer; and
  • adjustments at settlement in favour of the buyer as compensation for the impediment (e.g. reimbursement of the buyers rent, legal fees, reimbursement of storage costs etc.).

 

Coronis Conveyancing is an integral part of Coronis' end-to-end property service. For more information on vacant possession or conveyancing services, contact Coronis Conveyancing via: www.coronisconveyancing.com.au.

 

 

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