What amounts to delivery of vacant possession in the context of a break clause that is exercisable on condition of such delivery? Lord Justice Rimer, delivering the leading opinion of the Court of Appeal in NYK Logistics (UK) Ltd v Ibrend Estates BV [2011] EWCA Civ 683, says: “The concept of ‘vacant possession’ in the present context is not, I consider, complicated. It means what it does in every domestic and commercial sale in which there is an obligation to give ‘vacant possession’ on completion. It means that at the moment that ‘vacant possession’ is required to be given, the property is empty of people and that the purchaser is able to assume and enjoy immediate and exclusive possession, occupation and control of it. It must also be empty of chattels, although the obligation in this respect is likely only to be breached if any chattels left in the property substantially prevent or interfere with the enjoyment of the right of possession of a substantial part of the property.” This statement is a re-affirmation of what we always believed to be the case.
Property PSL