Vacant possession Cumberland Consolidated Holdings Ltd v Ireland [1946] 1 KB 264 Ronan [17.30] . Cumberland (purchaser) Ireland (vendor). . Contract 24 March 1945 - disused freehold warehouse with vacant possession . Cellars under warehouse unusable due to large quantity of rubbish . Matter completed even though vendor refused to remove rubbish . Purchaser arranged removal and brought proceedings for damages for breach of condition requiring vacant possession (as this did not merge on completion of the contract). . Clause 20.8 in the current contract version - non merger. . No legal tenancy or other legal right by someone else to occupy - but there was a physical impediment to the purchaser being able to use the cellarVacant possession - Cumberland Consolidated Vendor arguments: Sold \"in state & condition as at exchange\" rubbish part of property - Sample condition used today "The purchaser acknowledges that the property is sold in its present condition and state of repair and subject to any infestation and dilapidation. The purchaser will make no objection, requisition or claim in respect ofthese matters.\" - Court said NO rubbish did not form part of "property sold" as described in the contract. Vendor only required to deliver \"legal\" right to occupy free of any claim of a right to possession. Court considered that not just a legal right but that: "the right to actual unimpeded physical enjoyment is comprised in the right to vacant possession" "that what he (the purchaser) bargains for is not merely the right in law but the power in fact to exercise the right\". Vacant possession Camber/and main principle \"When we speak of a physical impediment we do not mean that any physical impediment will do. It must be an impediment which substantially prevents or interferes with the enjoyment of the right of possession of a substantial part of the property. Such cases will be rare, and can only arise in exceptional circumstances ..." Two part test: Physical impediment is substantial and, It affects a substantial part of the property Cumberland - another vendor argument Rubbish was \"abandoned\" so vendor didn't have to remove. Court said: Vendor who leaves own property on premises without purchaser consent claiming right to use the premises for own purposes a dump! Vendor has a duty, as trustee for the purchaser between exchange and completion, not to wilfully damage the property, goods left are wilful damage & breach of duty 0 Vendor not entitled to rely on his own breach of trust as a defence