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Court of Appeal hands down judgment on vacant possession

In the case of NYK Logistics (UK) Ltd v Ibrend Estates BV [2011] EWCA Civ 683 (judgment 16th June 2011) in which John de Waal, instructed by Reed Smith LLP, acted for the successful Respondent Ibrend, the Court of Appeal had to consider what is meant by the term ‘vacant possession’ for the first time since 1946.

NYK was the tenant of an 80,000 sq ft warehouse in Rotherham. The lease had a break clause which required NYK to give its landlord Ibrend vacant possession. Notice was given and NYK moved out of the premises; however, in the week after the break date NYK’s workmen came back in to do about two days of works on outstanding repairs. Ibrend claimed that NYK had not given vacant possession because it was using the premises for its own purposes and was successful at trial in the Sheffield County Court and now in the Court of Appeal.
 
Giving the lead judgment, Rimer LJ discussed the earlier decision of the Court of Appeal Cumberland v Ireland [1946] KB 264 and at para. [44] said that the concept of ‘vacant possession’ was not 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 chattels and that the purchaser is able to assume and enjoy immediate and exclusive possession, occupation and control of it.’"

This important decision both resolves some outstanding difficulties with the Cumberland test and also ,helpfully, gives property lawyers a clear bright line test with which to advise their clients.