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What Is Vacant Possession?

Vacant possession may occur with empty storefronts.
Real estate agencies may take possession of a vacant home to try and sell it.
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  • Written By: Jessica Ellis
  • Edited By: Bronwyn Harris
  • Last Modified Date: 06 September 2014
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"Vacant possession" is a legal term that plays an important part in real estate transactions. The term has several nuanced meanings, but in general refers to the right of the purchasing tenant or owner to take possession of a property that is free from prior tenants and any items left behind by prior tenants, builders, or vendors. If vacant possession is specified in a real estate contract and not delivered, the transaction cannot be completed.

Often, vacant possession refers to a piece of real estate, such as a home or apartment, that has been completely vacated by prior tenants. Depending on the jurisdiction, this may also require the seller or vendor to ensure that the property is free of squatters, whether they are former tenants or vagrants using the abandoned property. A purchasing tenant may refuse to complete the deal and pay for the property if there are any previous tenants or squatters on the property on the date when the sale is finalized.

In addition to the physical presence of people other than the new owner or lessee, vacant possession also guarantees that the lot will be free from any property that does not belong to the buyer. This may include rubbish, furniture, artwork, clothing, appliances, or other items left behind by the vacating parties. It is often the seller's duty to ensure that the house and property are completely free from any debris or items before the buyer finalizes the deal.

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The scope of vacant possession does not extend to only the house or dwellings. Any land included in the deal may be subject to vacancy before the new owner agrees to pay for the property. This may become a concern in sales that include large property lots; the seller or selling agency may have to tramp throughout the entire parcel of land to ensure that there is no debris, unauthorized persons, or other violations of vacancy.

Not all real estate deals feature a vacant possession clause. In some property sales, where there are multiple occupied units, the agreement may provide that the sale include existing tenancies. If there is no vacant possession clause, a buyer usually has no right to demand the removal of property or persons from the property so long as they are existing tenants.

With the housing and financial crashes of 2008, vacant possession became a harder thing to guarantee. Those incensed at losing their homes may refuse to vacate, holding up the sale and transference of property to new owners. This complicated issue is causing serious problems throughout parts of the United States and other countries, as foreclosed tenants claim that they were unfairly allowed to be turned out of their homes, while sellers and new buyers tout personal responsibility on the part of a mortgage holder.

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