What is Vacant Possession in WA (and when does it matter)?

If you’re buying a property in Perth, you might notice the words “vacant possession” in your Offer and Acceptance (O&A). Or maybe not… they’re hidden in the fine print about halfway down the first page.  Nonetheless, it’s one of those legal phrases that is used frequently in real estate transactions but isn’t always clearly explained or understood.

Buyers often assume vacant possession simply means “I get the keys on settlement day”. Sellers sometimes assume it just means “I’ll be out by then”. In reality, vacant possession has a very specific meaning in WA property transactions, and it is important that buyers and sellers understand this.

So, let’s look at what vacant possession actually means... When is it required? And what happens if it’s not provided as expected?

What does “vacant possession” mean?

Put simply, vacant possession in WA means the buyer receives the property empty and free from occupation at settlement.  That means:

• No people living in the property

• No tenants remaining in possession

• No seller still occupying the home

• No belongings, furniture, rubbish, or stored items left behind

Vacant possession means not only physical vacancy but, more so, exclusive possession. The buyer must be able to take full legal and physical control of the property immediately after settlement.

Under the standard WA residential contract issued by REIWA, vacant possession is actually assumed by default, unless the contract states otherwise.  There’s a small snippet below the buyer’s details on the first page that confirms vacant possession:

How vacant possession works in WA contracts

The standard wording in a WA Offer and Acceptance states that the buyer is purchasing the property with vacant possession unless otherwise stated in the Special Conditions. This means buyers do not need to request vacant possession.  Unless stated otherwise, they automatically get it.

If vacant possession is not being provided, this must be clearly disclosed and agreed to by the buyer in the contract. Similarly, if the property is tenanted or seller-occupied beyond settlement, the contract should reflect that.

This is why it’s so important to understand who is living in the property at the time you make your offer.

Vacant possession at settlement (what actually happens)

In WA, settlement is completed electronically via PEXA, and ownership changes immediately. What many buyers don’t realise is that vacant possession does not always mean the seller must be physically out the minute settlement occurs.

If the seller is living in the property, there is a ‘limited occupation’ clause buried even further in the fine print (Clause 6.3 of the Joint Form of General Conditions, to be precise) that allows them to legally remain until 12pm the day after settlement.

This is still considered vacant possession under WA practice, so long as:

• The seller vacates by 12pm the next day

• The property is left empty and clean

• All available keys are handed over

Buyers should factor this into their moving plans, especially if they’re hoping to move in on settlement day.  This can be a little problematic when there is a simultaneous sale and purchase, or a chain of transactions.  Early communication with your real estate agent about key handover is important to ensure everyone can time their moves appropriately.

And speaking of key handover, for most contracts in WA, the seller is only obligated to provide the keys they have.  In certain cases, this may only be a front door key.  So long as the ‘Access Device’ to the property is provided, it can be difficult to force a seller to provide anything more.

Different scenarios where vacant possession matters

1. Seller-occupied properties

This is the most common scenario for owner-occupiers.  If the seller lives in the home, vacant possession is still provided, and the seller must vacate by 12pm the day after settlement.  It is important to know that this refers to days, not business days.  So, if settlement occurs on a Friday, the seller must vacate by 12pm on the Saturday.  At the time of vacating, the property must be left clear of all belongings and rubbish.

Problems arise when sellers underestimate how long moving takes, or when items are left behind.  Common issues include:

• Unwanted furniture left in garages or sheds

• Rubbish not removed

• Appliances removed that buyers thought were included

• Pets still on site

If the property isn’t genuinely vacant, this can create disputes after settlement.

2. Vacant properties

If the property is already vacant when you make your offer, vacant possession is usually straightforward.  However, buyers should still confirm the property remains vacant up to settlement and conduct a final inspection to ensure nothing has changed.  At this inspection, you should check that inclusions and fixtures remain.

Even vacant homes can cause issues if items are reintroduced or access is granted to third parties before settlement.

3. Tenanted properties

This is where vacant possession becomes critical.  If a property is tenanted, vacant possession cannot be provided unless the tenant has vacated before settlement, and the seller has lawful possession back.

If a fixed-term lease is still in place, vacant possession is generally not possible, and the property must be sold subject to the existing tenancy.  The existence of the lease should be included as a special condition in the contract.

This is why buyers should always ask: “Is the property currently owner-occupied, vacant, or tenanted?”

If you’re unsure, clarify it before you sign the offer.  You can also refer to our separate blog on Buying a House With a Tenant in Place for a deeper dive.

What happens if vacant possession isn’t provided?

If a contract requires vacant possession and it isn’t delivered, the buyer may have rights, but the outcome depends on the circumstances.  Potential issues include:

• Delays to moving in

• Additional accommodation or storage costs

• Disputes over items left behind

• Claims for compensation (in limited situations)

These situations are stressful, time-consuming, and often avoidable with proper advice upfront.  This is where your settlement agent plays a key role, so if any issues arise with possession post-settlement, be sure to keep your settlement agent and real estate agent fully informed so that they can guide you.

Why final inspections matter

The final inspection is your opportunity to confirm vacant possession will be delivered as agreed. During the inspection, buyers should check:

• The property is empty (or clearly in the process of being vacated, if it is the seller’s primary residence)

• All fixtures and inclusions remain

• No damage has occurred since the offer was signed

• If any rubbish or belongings remain, clarify the arrangements to have these removed prior to settlement and key handover

If something isn’t right, your settlement agent should be notified immediately so it can be addressed before settlement.

Even though vacant possession is standard, it’s worth asking questions if the property appears occupied (by someone other than the seller) during inspections, or if a property manager or tenant is mentioned in the marketing.  Clarifying this early avoids assumptions, and trust us when we say that assumptions are where most property disputes begin.

What sellers need to know about vacant possession

For sellers, providing vacant possession means:

• Being fully moved out on time

• Removing all personal belongings and rubbish

• Leaving the property in the condition required by the contract

• Returning all available keys and access devices

If you can’t meet these obligations, your settlement agent should be involved early to manage expectations and, where necessary, adjust the contract terms.

FAQ: Vacant possession in WA

What does vacant possession mean in WA?

It means the buyer receives the property empty and free from occupation at settlement.

Do I get vacant possession on settlement day?

Yes (provided there is no lease in place).  Although if the seller lives in the property, they may remain until 12pm the day after settlement.

Can I move in on settlement day?

Only if the property is vacant and the settlement has been completed. Always wait for confirmation from your conveyancer.

What if the property is tenanted?

Vacant possession cannot be provided unless the tenant has lawfully vacated before settlement.

What if the seller leaves belongings behind?

This can cause disputes. Always raise concerns at the final inspection and involve your settlement agent early.

The bottom line when it comes to vacant possession

Vacant possession is one of those concepts that seems straightforward.  And in most cases it is...  Until it isn’t. Understanding who is living in the property, when they must vacate, and what “vacant” actually means can save buyers and sellers significant stress.

If you’re buying in Perth and unsure whether vacant possession applies to your purchase, getting advice before you sign can make all the difference.

North Shore Conveyancing helps buyers and sellers across Perth understand their contracts clearly and avoid surprises at settlement. If you want to know more about vacant possession, contract wording, or timing, contact Katelyn for calm, practical guidance before you commit.