When a property houses a tenant, the corresponding clauses must be inserted into the GSP in order to put an end to the empty property, because the property is not actually evacuated. If free possession is not given to the buyer at closing, it must be indicated in the GSP. This may seem obvious and what has been done, but not all property transfers are so simple. The terms and conditions of sale in England and Wales allow the sale of a property with or without virgin property. In the latter case, this generally indicates that there are occupants of the property whose lease goes beyond the completion date of the sale. This means that if you were the buyer, you would agree to take over the property with tenants on site. The REIQ contract for homes and residential land (15th edition) (REIQ contract) [at paragraph 5.5] requires that «the seller on the billing date, in exchange for the purchase price of the balance, give the buyer free possession of the country and improvements except for leases.» In general, the obligation to grant free possession requires a seller, all goods (chattes) that are not included in the sale of real estate prior to billing, including «garbage» that is not due to sale (unless the buyer has agreed that these assets are permanently abandoned or left on the ground). The likely date of free possession, if included in your contracts, is the date on which the seller gave the buyer the consent to have the property cleared of tenants/occupiers and property, and in an appropriate condition to be filled. This is not to say that things cannot go wrong and delays cannot happen, but it is important because it has legal implications.
You may find yourself in a situation where you are buying in free possession, and the current landlord has tenants who live in the property. This would mean that the current landlord has agreed to terminate the lease – or not renew it – and will ensure that tenants move before being exchanged or finalized. Possible effects of non-supply of free property It is therefore important that the seller argues at each transfer in order to verify what amounts to free custody and if he is satisfied that he can fully fulfil the contractual condition. It would also be wise for the buyer to ensure that they have visited the property and have drawn their lawyer`s attention to any concerns, for example, if they have been told that there is no one on the property, but in fact, there is evidence for someone who lives there or if it has been established that the local loft (or perhaps a shed or garage) is full of items that the buyer does not want to inherit.