A common complaint that real estate agents and lawyers will hear from the purchaser of a home is that the sellers, or vendors, have left garbage and other detritus behind, which the purchasers then have to remove. Some purchasers wonder if the trash (or other debris) left behind is sufficient to warrant a claim against the vendor for failing to provide ‘vacant possession’ as required under most Contracts of Purchase and Sale. Are the entitled to threaten legal action in order to motivate the vendor to remove the garbage or arrange for its removal?

A recent decision of the British Columbia Civil Resolution Tribunal (BCCRT) was faced with such a question.

The Facts

The purchasers bought a townhome from the vendor, and the Contract of Purchase and Sale (the “Contract) stated that the vendor would provide the purchasers with ‘vacant possession’ on the closing date. When the purchasers arrived at the home, there were multiple full garbage bags, some full boxes, wood scraps, several car jacks, a paint can, and some metal siding from a dismantled shed present in and around the home. The purchasers paid to have the debris removed from the property and sought the cost of the removal as part of their claim against the vendor.

What Exactly Constitutes ‘Vacant Possession’?

In examining the definition of ‘vacant possession’, the BCCRT referred to a 1975 decision of the Ontario Superior Court of Justice, Zygocki v. Hillwood, which examined the meaning of the phrase. The BCCRT in the present case found that, according to Zygocki:

[A] purchaser has a right to actual, unimpeded physical enjoyment of the premises. The court [in Zygocki] said the vendor has not complied with the duty to provide vacant possession if there exists a physical impediment which substantially interferes with the enjoyment of the right of possession of a substantial part of the premises to which the purchaser has not expressly or impliedly consented.

 In the case at hand, the debris was not significant. It did not even take up one room and was carted away in a single load. While the debris was no doubt a nuisance for the purchasers to deal with, it did not violate the clause in the Contract to provide vacant possession, as it did not constitute a physical impediment which substantially interfered with a substantial part of the property.

The BCCRT did note that if the Contract had specified ‘broom swept’ condition, as many Contracts do these days, the outcome may have been different.

Another Aspect of the Purchaser’s Claim

While not the main focus of this post, it is interesting to note that the purchasers also made a claim for reimbursement for the cost of replacing three appliances that the vendor took with him when leaving the home: a wine fridge, a bar fridge and a water cooler. The vendor claimed that these items did not form part of the Contract because they were his personal possessions. However, the vendors pointed out that the Contract contained a clause specifying that ‘all appliances’ were included with the purchase of the home.

The BCCRT agreed with the purchasers that the removed items should have been left behind, as they formed a part of “all appliances” noted in the Contract. These items were appliances, and without a separate clause specifically excluding them from the purchase, they formed a part of the agreement.

Buyers and Sellers Should be Aware of Their Rights and Obligations

When buying or selling a home, the Contract should dictate the terms with respect to the condition of the home and the items to be left behind clearly and unambiguously. It is important to leave the property in the condition specified, or costly and time-consuming litigation may follow.

For sellers who may wish to retain ownership over certain items that may be considered to be included as a fixture of the home or under another clause in the Contract, it is important to specifically exclude those items. For example, many Contracts will specify that all fixtures are included. The term ‘fixture’ refers to any item attached to the home, such as light fixtures or a fireplace mantle. If the vendor wishes to take a specific chandelier with them to their next home, this item should be specifically excluded in the Contract.

With respect to debris left behind, purchasers who want to ensure that nothing remains after the Vendor leaves should be sure to include that the property will be left in ‘broom swept’ condition. As illustrated by the case above, ‘vacant possession’ is not sufficient to prevent trash and other items left by the vendor from becoming the purchaser’s responsibility.

The best solution is to have an experienced real estate lawyer review any Contract before signing. Buyers and sellers often neglect to take the time to do this, however, a lawyer will review the Contract with an eye to your priorities, and ensure that they are properly protected, or make suggestions for amendments. This is the best way to ensure that there are no surprises come closing day.

The lawyers at Cherkowski Marsden LLP have over 50 years of combined experience assisting clients with real estate purchases and sales. They will carefully review any Contract of Purchase and Sale before signing in order to ensure that your rights and concerns are properly addressed. To arrange a consultation with an experienced lawyer, please contact their office online or by phone at 250-308-0338.