Yielding up and vacant possession

The following Property practice note provides comprehensive and up to date legal information covering:

  • Yielding up and vacant possession
  • Vacant possession
  • Tenant's fixtures
  • Yielding up
  • Break condition
  • Subleases

Yielding up and vacant possession

Whether a tenant has yielded up, with or without vacant possession, is a question of fact and degree. Most modern leases contain an express covenant on the part of the tenant to yield up possession of the premises on the determination of the term. However, in the absence of such an express covenant or other express stipulation, every tenant is nevertheless under an implied contractual obligation to deliver up possession to the landlord. That obligation is thought to extend to delivering up vacant possession (see Henderson v Squire (1869) LR 4 QB 170).

Vacant possession

In Cumberland, the court held that the test for vacant possession was whether what was left behind was an impediment which substantially prevented or interfered with the enjoyment of a substantial part of the premises. The cellars under a warehouse were unusable as they contained rubbish, including numerous sacks of hardened cement. Consequently, the tenant had not given vacant possession. See our Practice Note: Vacant possession for more detailed information on vacant possession.

The Court of Appeal in NYK Logistics confirmed that in Legal & General, Lewison J correctly identified the essence of the two grounds on which Cumberland was decided. The difference is the nature of the interference with undisturbed enjoyment, that is whether it is:

  1. the mere presence of unwanted goods at the property, or

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