Q&As

A company (X) takes an assignment of a commercial lease from the outgoing tenant (Y). The contract provides that Y will give vacant possession. Y has not provided a key to the rear access fire door (although it has delivered the other keys to the premises). Can it be said that Y has not given vacant possession or does X have any other remedy?

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Produced in partnership with Helen Galley of XXIV Old Buildings
Published on LexisPSL on 20/06/2018

The following Property Q&A Produced in partnership with Helen Galley of XXIV Old Buildings provides comprehensive and up to date legal information covering:

  • A company (X) takes an assignment of a commercial lease from the outgoing tenant (Y). The contract provides that Y will give vacant possession. Y has not provided a key to the rear access fire door (although it has delivered the other keys to the premises). Can it be said that Y has not given vacant possession or does X have any other remedy?

The question here is whether the failure to hand over the key to the rear access fire door is a breach of a contractual term to give vacant possession on completion of an assignment of a lease of business premises when the other keys to the premises are handed over. The fact that the situation has arisen on the assignment of a lease rather than on the sale of a freehold property makes no difference to the answer to this Q&A which would be the same in either case.

Vacant possession means free from any occupation by the vendor or a third party and free from any claim to a right to possession of the premises.

In Legal & General Assurance Society Ltd v Expeditors International (UK) Ltd, Lewison J observed that two tests had been proposed by the Court of Appeal in Cumberland Consolidated Holdings Ltd v Ireland. He said that the first test looks at the activities of the person who is required to give vacant possession and if he is actually using the property for purposes of his own other than de minimis use he will be held not to have given vacant possession. The second test, how

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