When is vacant possession not vacant possession (in NSW)?

Over the years, as buyer's agents, we have mostly always done the pre-settlement inspection on behalf of, or in company with, our clients. This is to make sure the property is in essentially the same condition as it was when inspected and all the inclusions are present (fair wear & tear excluded). On numerous occasions we have either arranged to delay settlement or withhold monies out of settlement funds because vendors have not removed rubbish or belongings from the property.

Today was another one of those occasions where everything was fine until I discovered a pile of rubbish hidden between the side fence and the back laundry (separate building from the house). It comprised a 44 gallon rusted out drum, some timber, a piece of bull-nose roofing iron and a panel of aluminum fencing. A photo attached to an email sent from our client’s conveyancer to the vendor’s solicitor soon had it removed and settlement took place on time.

However, the conveyancer acting for our client, the purchaser, was not confident we could insist on its removal. They explained: The legal position for vendors and purchasers in this situation is that the vendor must provide ‘vacant possession’ on settlement and case law history on this particular matter is substantially favoured for the vendors benefit. Essentially what the Courts have decided over many years is that if the property can be used for its intended purposes then the vendor has provided ‘vacant possession’. There was a case recently where a car was dumped on the property and in that situation the purchaser was not successful in demanding for its removal!

Wow – so all this time, including today, we have been bluffing about forcing vendors to leave the property “vacant” which to me had meant “empty”.

 

Whats the opposite of vacant in this context? Is it ‘full of stuff’ or ‘tenanted’?

 

Back in the dark ages we bought an ex-scrapyard site off the neighbour.

Settlement was conditional on removal of all materials. They'd left a bus chassis on site amongst other things. Long story short, we were threatened by this person walking his boundary with a rifle.

Solicitors at 10 paces is much more civilised.

 

But is vacant possession the actual clause that a buyer is relying on to rectify that sort of issue? I thought it would have been some cleanliness or "as-inspected" clause?

 

Vacant possession means no tenants. It doesn't relate to leaving rubbish behind - which could come under a different section of the contract.