Delivering up vacant possession

25th March 2021

Delivering up vacant possession

The Covid-19 pandemic has, unfortunately, put incredible strain on businesses and many will be looking to end their tenancies early. Whether that be by effecting a break clause, assigning the lease or agreeing to a surrender with the landlord, one of the key conditions for an effective termination will be for the delivery up of vacant possession. 

With a front-heavy imbalance in supply and demand, some landlords will be desperate to keep tenants on the hook - and who can blame them if they rely on the rent as a stream of income? Nonetheless, where a tenant wishes to end its lease, it is crucial to ensure vacant possession is delivered up.

Vacant possession does not merely amount to giving up the premises free from occupation, and the Courts have confirmed this in recent case law.

In Riverside Park Ltd v NHS Property Services Ltd [2016] it was held that the tenant’s failure to remove its fixtures and fittings (which included removeable partitioning) meant vacant possession had not been delivered up.

At the other end of the spectrum, it was held in the case of Capitol Park Leeds Plc v Global Radio Services [2020] that the tenant had not delivered up vacant possession as it had returned to the landlord “an empty shell of a building which was dysfunctional and unoccupiable". Despite this being due to the tenant undertaking refurbishment works that could not be completed by the termination date, the Court found that the tenant had not vacated the premises in accordance with the lease.

What exactly constitutes vacant possession will be subjective in each case and will be determined by the terms of the lease. Any prudent tenant would be wise to adopt a cautious approach and seek legal advice on this in advance of the break date to ensure they do not fall short in delivering up vacant possession.   

If you are due to vacate your premises in the coming months, or are considering ending your lease early, please contact Reanne Upton who would be happy to provide further advice. Email or call 01384 327164.




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