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Durham E-Theses The Concept of Vacant Possession: Theory and Practice SHAW, KEITH,ALAN How to cite: SHAW, KEITH,ALAN (2010) The Concept of Vacant Possession: Theory and Practice, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/747/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk The Concept ofVacant Possession: Theory and Practice Keith Alan Shaw PhD Durham Law School 2010 A thesis submitted to the Durham Law School in fulfilment ofthe requirements ofthe degree ofDoctor ofPhilosophy at the University ofDurham. The Concept ofVacant Possession: Theory and Practice Contents Dedication ii Acknowledgements iii Abstract iv Table ofCases vi Table ofLegislation xvii Chapter 1 The Importance ofVacant Possession 1 Chapter 2 The Current Problems with Vacant Possession 20 Chapter 3 Vacant Possession and Contractual Conditions 50 Chapter 4 Vacant Possession and Conditions of Sale 78 Chapter 5 The Nature ofthe Obligation - Persons in Occupation 128 Chapter 6 The Nature ofthe Obligation - Legal Obstacles 158 Chapter 7 Breaching the Obligation to give Vacant Possession 177 Chapter 8 The Scope and Extent ofthe Obligation 222 Chapter 9 Vacant Possession and Title 248 Chapter 10 Conclusion 284 Appendix Standard Commercial Property Conditions (2nd Edition) 298 References 305 For all those who didn't quite move out in time... Ii Acknowledgements A great munber of people have assisted me in the preparation of this thesis including many colleagues, family and friends. It would be rather long winded to recite them all but it is appropriate, in particular, to thank for their assistance, my PhD supervisors, Professor Lorna Fox O'Mahony and Neil Cobb, and colleagues at Pinsent Masons LLP, including, in particular, Stuart Wortley and Matthew Baker. I also indebted to those who proofread drafts ofthis thesis, and thank Katharine Holland QC, Alicia Foo and Alister Bould. To single one person out: a great debt is owed to John Martin (formerly of Pinsent Masons LLP), who enabled this undertaking to get off the ground from the beginning; his support and assistance were most valuable to me, and I wish him well in the future. iii Abstract To the everyday man or woman on the street, the! termvacant possession' raises its head most noticeably in the residential sphere, with many everyday people buying and selling property and being obliged to give, or entitled to receive, vacant possession. Furthermore, the term is by no means limited to a 'lay' usage: a wide range of business and professional people use the expression 'vacant possession' on a daily basis, and the term is in the lexicography ofjudges, conveyancers, litigators, surveyors, estate agents, commentators and others connected to property, including property owning landlords and tenants. All these stakeholders make use of the term in a formal and professional sense, and with reference to legal transactions for which vacant possession is an essential element. Although it is an everyday term that is used by many, a common feature ofthese usages of the term is a lack of attention to what it actually means. For example, estate agents, who invariably use the term in their advertising particulars, seem able to distinguish between 'full vacant possession', 'immediate vacant possession' or 'complete vacant possession', with ostensibly no real justification as to how the prefacing adjective in each case adds anything to the message that they are seeking to convey to prospective purchasers, as to what they can expect to obtain on completion. Lawyers talk about 'giving VP on completion', but few documents ever actually define what vacant possession means with a capitalised 'V' and 'p,.l Furthermore, the courts have made decisions as to whether vacant possession was or was not given in a particular instance, but rarely found it necessary to explain what the term actually meant, or sought to explicitly apply an understanding ofthe concept to the facts ofany particular case. I See Shaw, K. 'Bone ofcontention' (2009) 1 Aug 2009 Estates Gazette 58-59. iv Indeed, behind the familiarity of this common expression, lie years of uncertainty, misunderstanding and general neglect c.f the development of a sound and coherent theoretical model of vacant possession. There is very little case law and even less judicial guidance available. In 1988, and in two editions of the Conveyancer and Property Lawyer, Charles Harpum wrote what probably remains the most insightful learned article on the subject.' but since then the concept appears to have warranted very little scholarly or practitioner attention. This thesis explores the concept ofvacant possession and its meaning. Expounding the inconsistent evolution and development of the concept, the thesis explains the constituent elements of the concept of vacant possession, along with the practical manifestation of the term in everyday property cases. In doing so, it highlights the difficulties that lawyers, surveyors, judges and other third parties face on a day-to-day basis when seeking to interpret the nature, scope and extent ofthe obligation. Further, to link this work to wider theoretical debate in literature pertaining to possession, the thesis draws on other common property law concepts, those of actual occupation and adverse possession; such a discussion helps to explain why the inherently infra-jural concept of vacant possession cannot be 'tied down' to a precise legal definition or formulation. In conclusion, and to facilitate understanding and usage ofthe term, the thesis draws on the analysis undertaken to promulgate a working articulation of the concept, and considers other provisions that can ameliorate the remedial entitlements for an injured party in the event of a breach of the obligation. These may go some way to assist all those who will encounter the concept in future legal transactions. 2 Harpum, C. 'Vacant possession - chameleon or chimaera?' (1988) Conveyancer and Property Lawyer 324,400 (C.H.). v Table ofCases Abbey National Building Society v Cann [1989] (The Times 15 March); [1991] 1 AC 56 Abbott v Sullivan [1952] 1 KB 189 A-G v Blake [2000] All ER (D) 1074 A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 (HL) AlfredMcAlpine Projects Limited v Tilebox Limited [2005] EWHC 281 (TCC) Ali Shipping Corpn v Shipyard Trogir [1998] 2 All ER 136 Ali v Christian Salvesen Food Services Ltd [1997] 1 All ER 721 Alici v LR Butlin Ltd [2006] 1 WLR 201 Allan v Liverpool Overseers (1874) LR 9 QB 180 Allen v Seckham (1879) 11 ChD 790 Alpha Trading Ltdv Dunshaw-s Paiten Ltd [1981] QB 290 Amalgamated Investment & Property Co Ltd v John Walker & Sons Ltd [1977] 1 W.L.R.164 Appleby v Myers (1867) LR 2 CP 651 Appleton v Aspin [1988] 4 EG 123 Ashmore v Corpn ofLloyd's (No 2) [1992] 2 Lloyd's Rep 620 Au-Gen v Horner (No.2) [1913] 2 Ch 140 Att-Gen v Horner (1885) 11 App Cas 66 Att-Gen v Simpson [1901] 2 Ch 671 Attica Sea Carriers Corpn v Ferrostaal Poseidon Bulk Reederei GmbH [1976] 1 Lloyd's Rep 250 Bacchiochi! v Academic Agency Ltd [1998] 1 WLR 1313 Bain v Fothergill (1874) LR 7 HL 158 Bakewell Management Ltd v Brandwood [2004] 2 AC 519 BankLine Ltdv Arthur Capel & Co [1919] AC 435 vi Bank ofCredit and Commerce International SA v Ali [2002] 1 AC 251 Bank ofNova Scotia v Hellenic Mutual War RiskAssociation (Bermuda) Ltd, The Good Luck [1990] 1 Q13 818; [1989] 3 All ER 628 Bank ofNova Scotia v Hellenic Mutual War Risk Association (Bermuda) Ltd [1989] 3 AlIER628 Barlett v Tuchin (1815) 1 Marsh 586 Barnett v O'Sullivan [1994] 1 WLR 1667 Barnett v Wheeler (1841) 7 M&W 364 Bass v Gregory (1890) 25 QBD 481 Beardv Porter [1948]1 KB 321 Becker v Partridge [1966] 2 QB 155 CA Belvedere Court Management Ltdv Frogmore Development Ltd [1997] QB 858 Bamford v Neville [1904] 1 IR 474 Botham v TSB Bank PTc [1996] 73 P & CR D1 CA Bourne v Fosbrooke (1865) 18 CB (NS) 515, 526; 144 ER 545 Bracewell v Appleby [1975] Ch 408 Brewer v Broadhead (1882) 22 CH D 105 British and Commonwealth Group plc v Quadrex Holdings Inc [1989] 3 All ER 492 Bruton v London andQuadrant Housing Trust (1874) 2 EGLR 59 Buckland v Butterfield (1820) 2 Brad & Bing 54 Caballero v Henty (1874) LR 9 Ch 447 Carr-Saunders v DickMcNeil Associates Ltd [1986] 1 WLR 922 Carter v Green [1950] 2 KB 76 CA Cato v Thompson (1882) 9 QBD 616 Chamber Colliery Co Ltdv Twyerould [1915] 1 Ch 268 Charter Reinsurance v Fagan [1997] AC 313 vii Chhokar v Chhokar [1984] FLR 313 Chinnock v Hocaoglu [2008] EWCA Civ 1175 Clarke v Ramuz [1891] 2 QB 456 Cieadon Trust Ltdv Davis [1940] Ch 940 Clippens Oil Co v Edinburgh District Water Trustees [1904] AC 64 Colbeam Palmer Ltdv StockAffiliates Pty Ltd [1968] 122 CLR 25 Collins v Hopkins [1923] 2 KB 617 Condor v The Barron Knights [1966] 1 WLR 87 Cook v Taylor [1942] Ch 349 Cooper v Mysak [1986] 54 OR (2d) 346 Cumberland Holdings Ltdv Ireland [1946] KB 264 Curtis v French [1929] 1 Ch
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