When buying a Sydney property, most buyers take it for granted that when they take ownership of the property, they are getting a vacant possession. In other words, at the time of the settlement, the property is in an acceptable vacant condition. However, this is not always the case.
In NSW, the law doesn’t have a clear definition as to what “vacant” means. In Sydney conveyancing, “vacant” doesn’t mean completely empty. It’s up to the seller and buyer of a Sydney property to define this term in details in the Contract of Sale of Land. It is important for you as a home buyer to seek expert advice of a property lawyer who offers Sydney conveyancing services.
Types of vacant possession
Vacant possession appears in various transactions including:
● When a Sydney property is sold or leased
● When a tenant moves out of a Sydney property at the end of the leasing period
● When a tenant breaks a lease and moves out of the property
Vacant possession includes two things:
● The giving of the property free from any right of occupation and tenancy
● The giving of the physical vacant possession, which requires the seller or tenant to remove all items not included in the sales or lease contract. This refers to all furniture, building materials, boxes and rubbish. The property should also be in a clean and undamaged condition.
Failure to give vacant possession
There are consequences when a tenant or seller fails to give vacant possession. For a residential property, the home buyer can refuse to settle and complete the Contract of Sale of Land. He can also apply for certain performance and damages. However, in some cases, the court may decide that the unwanted items on the property do not impede settlement and the buyer cannot terminate the contract. For commercial property, tenants who fail to give vacant possession will remain bound by the leasing contract. The owner of the property also has the right to damages.
It is also a common practice for the property lawyer to withhold the amount of money from the deposit to cover the cost to remove the unwanted items on the property. The obligation of the seller to provide vacant possession continues even if the buyer settle. The buyer has the right to sue the seller if the unwanted items are not removed promptly after settlement.
It is recommended that home buyers get assistance from a property lawyer for their Sydney conveyancing transactions including vacant possession.
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