After weeks of negotiations, contracts and preparation, settlement day is when everything finally comes together.
Settlement has taken place. You’re finally able to walk through your new property as its owner for the very first time.
Then you open the garage, and it’s still full of the seller’s belongings.
The shed contains old paint tins, broken tools and years’ worth of things they no longer wanted. There’s timber under the house, rubbish in the backyard and boxes stacked in the storage area.
It’s a situation we see more often than many people realise.
The most common dispute that arises on the day of settlement, is an argument over whether the seller has given ‘vacant possession’.
Most people think vacant possession simply means the seller has moved out of the property. In reality, it’s a little more complicated than that.
Generally speaking, vacant possession means the buyer receives the property free from people remaining in occupation and free from belongings that substantially interfere with their ability to use and enjoy the property.
That doesn’t mean every forgotten broom, garden hose or spare tin of paint will prevent settlement. Equally, however, a seller can’t simply leave behind a garage, shed or storage area full of unwanted possessions and expect the buyer to deal with the clean-up.
Like many areas of property law, every situation depends on its own facts.
The challenge is that these disputes usually arise at the worst possible time. Settlement is ready to occur, removalists may already be waiting, utilities have been connected and the buyer may be expecting to move in that very day.
In our experience, most of these situations aren’t caused by bad intentions.
Buying and selling property remains one of the most stressful things many people will ever do. Despite the advances in electronic conveyancing, digital signatures and online settlements, the practical reality of moving house hasn’t changed. People run out of time, plans change and things get overlooked.
A shed doesn’t quite get emptied.
The old timber is forgotten under the house.
The old broken trailer is still sitting beside the garage.
What begins as an understandable oversight can quickly become a settlement day dispute.
Fortunately, many of these issues are avoidable.
If you’re selling a property, allow enough time to completely clear the home before settlement. Check not only the obvious areas, but also the garage, shed, roof space, under the house and any storage areas that are easy to overlook during a busy move.
If you’re buying, the final inspection is an important opportunity to make sure the property is being handed over in the condition required by the contract. If something doesn’t seem right, speak with your lawyer before settlement, not afterwards.
Vacant possession disputes are rarely about complicated legal principles. More often, they’re about assumptions, rushed moves and the pressures that come with relocating.
Moving house is stressful, and running out of time is a very human problem. A little planning before settlement can make settlement day much less stressful for everyone involved.