09/18/2026
Vacant Possession in Real Estate: Do You Always Have to Close?
When you buy a property under a standard Agreement of Purchase and Sale (APS), the contract often states the home must be delivered vacant on closing. But what if it isnāt? Do you still have to close?
The short answer: it depends on the circumstances. Ontario case law shows there are situations where a buyer must go through with the dealāand others where the buyer is fully entitled to refuse.
Why Vacant Possession Matters
āVacant possessionā isnāt a throwaway clause. It means you, the buyer, are entitled to take possession of an empty property. If itās not vacant, your ability to move in (or rent it out) is directly impacted.
Courts, however, donāt treat every delay or hiccup the same. They ask: is this a temporary inconvenience, or is the seller truly unable to deliver what was promised?
Case 1: The Moving Truck in the Driveway
In Di Millo v. 2099232 Ontario Inc., 2018 ONSC 6134 (Div. Ct.), the tenants were still inside at 4:00 p.m. on closing dayābut they were literally packing and moving their belongings into a truck.
The buyer refused to close, pointing to the āvacant possessionā clause. The seller sued. The court sided with the seller, finding the buyer was relying on a technicality to escape the deal. Because the tenants were visibly leaving, the refusal was unreasonable.
š Lesson: Donāt use a small timing issue as an excuse. If the home is clearly being vacated, youāre expected to close.
Case 2: Tenants Who Refuse to Leave
In McCallum v. Dean, [2000] O.J. No. 3129 (Ont. S.C.J.), the buyer made it clear that they needed the property to be vacant because they were moving in immediately. On closing day, the tenants hadnāt leftāand had no intention of leaving.
The seller admitted they couldnāt deliver vacant possession. The buyer refused to close, then sued for specific performance (to obtain the home at the agreed-upon price). This time, the court sided with the buyer, ruling that vacant possession was a fundamental term of the deal.
š Lesson: If the property simply isnāt vacant and wonāt be delivered vacant, buyers donāt have to close.
What This Means for You
Buyers: You donāt ā
