We have served a notice to terminate a lease. What do I have to remove from the premises in order to give vacant possession?
“This is a common concern, and rightly so,” says Dan Cuthbert, associate at law firm Osborne Clarke. “Although giving vacant possession is a common condition in break options, unfortunately there is no clear definition of what this actually means.”
A couple of recent cases illustrate why there is confusion. In the first case, workmen were at the property along with some minor items for a few days after the date for giving vacant possession. Although they were finalising repairs to avoid a claim for dilapidations, the court ruled that the tenant had failed to give vacant possession. That tenant is now in the property until the end of the lease term. In another, the tenant failed to hand back the keys and left security guards at the premises along with some items, yet the court ruled the tenant had provided vacant possession.
“It’s critical that if you’re exercising a break option in your lease, you do it to the letter,” says Cuthbert. Failure to comply completely means you might not be able to terminate it. You might even have to stay in your current property for the remainder of the lease or until the next break opportunity.
There are other basic rules to follow. He advises removing everything that belongs to you. “Check your lease to see whether this includes things like fixtures and fittings,” he says. Also, ensure there are no legal impediments remaining such as continuing ‘underleases’ – something easily overlooked.