The Concept of Vacant Possession: Theory and Practice

Abstract To the everyday man or woman on the street, the term 'vacant possession' raises its head most noticeably in the residential sphere, with many everyday people buying and selling property and being obliged to give, or entitled to receive, vacant possession. Furthermore, the term is by no means limited to a 'lay' usage: a wide range of business and professional people use the expression 'vacant possession' on a daily basis, and the term is in the lexicography of judges, conveyancers, litigators, surveyors, estate agents, commentators and others connected to property, including property owning landlords and tenants. All these stakeholders make use of the term in a formal and professional sense, and with reference to legal transactions for which vacant possession is an essential element. Although it is an everyday term that is used by many, a common feature of these usages of the term is a lack of attention to what it actually means. For example, estate agents, who invariably use the term in their advertising particulars, seem able to distinguish between 'full vacant possession', 'immediate vacant possession' or 'complete vacant possession', with ostensibly no real justification as to how the prefacing adjective in each case adds anything to the message that they are seeking to convey to prospective purchasers, as to what they can expect to obtain on completion. Lawyers talk about 'giving VP on completion', but few documents ever actually define what vacant possession means with a capitalised 'V' and 'P'. Furthermore, the courts have made decisions as to whether vacant possession was or was not given in a particular instance, but rarely found it necessary to explain what the term actually meant, or sought to explicitly apply an understanding of the concept to the facts of any particular case. Indeed, behind the familiarity of this common expression, lie years of uncertainty, misunderstanding and general neglect of the development of a sound and coherent theoretical model of vacant possession. There is very little case law and even less judicial guidance available. In 1988, and in two editions of the Conveyancer and Property Lawyer, Charles Harpum wrote what probably remains the most insightful learned article on the subject, but since then the concept appears to have warranted very little scholarly or practitioner attention. This thesis explores the concept of vacant possession and its meaning. Expounding the inconsistent evolution and development of the concept, the thesis explains the constituent elements of the concept of vacant possession, along with the practical manifestation of the term in everyday property cases. In doing so, it highlights the difficulties that lawyers, surveyors, judges and other third parties face on a day-to-day basis when seeking to interpret the nature, scope and extent of the obligation. Further, to link this work to wider theoretical debate in literature pertaining to possession, the thesis draws on other common property law concepts, those of actual occupation and adverse possession; such a discussion helps to explain why the inherently infra-jural concept of vacant possession cannot be 'tied down' to a precise legal definition or formulation. In conclusion, and to facilitate understanding and usage of the term, the thesis draws on the analysis undertaken to promulgate a working articulation of the concept, and considers other provisions that can ameliorate the remedial entitlements for an injured party in the event of a breach of the obligation. These may go some way to assist all those who will encounter the concept in future legal transactions