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Surrender

This content applies to England

The requirements for a surrender of a tenancy.

A surrender is a voluntary agreement between the landlord and tenant that the tenancy has come to an end. A surrender will terminate the tenancy, whether it is fixed-term or periodic.

A surrender can be express or implied.

Express surrender

Express surrender is made by deed. The deed must be signed by both landlord and tenant. Both signatures must be witnessed.[1]

The written agreement must make it clear that it is a deed and set out that the tenancy will come to an end with immediate effect.[2]

Implied surrender

Most commonly a surrender of the tenancy is implied. This is also referred to as surrender by operation of law.

For an implied surrender to take effect there must be an unequivocal act or series of acts, by both tenant and landlord, that are inconsistent with the continuation of the tenancy.[3] At its simplest the landlord and tenant will agree that the tenant will hand the property back to the landlord and the tenancy will have ended.

Whether the actions of the tenant and landlord had the effect of ending the tenancy will depend on the particular facts of each case.

Tenant leaves without notice

Surrender does not occur when the tenant merely leaves the property without giving notice to the landlord, even if that absence is for a long period and rent is owing. If it could be shown that a tenant had left owing a substantial sum of money and had been absent for a significant time, then an application by the landlord under trespasser proceedings might be sufficient for a court to regard the tenancy as surrendered by operation of law.[4]

Abandonment

The tenant leaving the property for a long period is often referred to as abandonment, but this is not a legal term.

Some landlords will affix an 'abandonment notice' to the door of a property left unoccupied for a period of time stating that the property will be repossessed without going to court if the tenant does not return within a specified period. An 'abandonment notice' has no legal standing and does not end a tenancy.

If a tenant in this situation returns to the property after a lengthy absence, for example a long holiday or a period in hospital, to find that it has been repossessed by the landlord this may amount to an illegal eviction. For more information see the page What is illegal eviction?

Breach of tenancy agreement

Many tenancy agreements will set out that the tenant must not leave the property unoccupied for a specified period without informing the landlord. The breach of such a term does not in itself amount to the surrender of the tenancy.

Handing back the keys

An implied surrender will result from the tenant handing the keys over to the landlord with the intention to end the tenancy, and the landlord accepting the keys and agreeing to the termination of the tenancy with immediate effect.[5]

If the tenant simply put the keys through the landlord's letterbox, this does not amount to implied surrender. It would only be the tenant's offer of surrender which the landlord is not bound to accept.[6]

Joint tenants

The surrender of a joint tenancy will only be effective where each of the joint tenants agrees to the surrender.[7]

Joint landlords

Where there are joint landlords the surrender of a tenancy must, as a rule, be agreed with each of the joint landlords.[8]

However, where one joint landlord can be said to be acting as an agent for the other(s) s/he can accept a surrender on behalf of all of the landlords. In a case where one of the two joint landlords had dealt with all matters under the tenancy, it was held to be a valid surrender when that one landlord accepted the return of the keys from the tenant as ending the tenancy because he was acting as the other joint landlord's agent.[9]

It may not be sufficient to surrender to only one joint landlord where, for example, the tenant knows that:

  • both (or all) joint landlords have taken an active role in the tenancy
  • there has been a relationship breakdown between the joint landlords (an example of when the agency of one joint landlord for another cannot automatically be inferred)

Where joint landlords have appointed an agent to act for them, and their tenant is instructed to deal with the agent, a surrender can be made to the landlords' agent.

Sub-tenants

Where a surrender of the head tenancy is agreed by the head landlord and the tenant, this will not automatically terminate any sub-tenancy granted by the tenant.[10]

The sub-tenancy will continue on the same terms and be binding on the head landlord, whether or not the subletting was granted with the landlord's consent.[11]

Rent due when tenancy ends mid-term

Rent that is due to be paid in advance cannot be apportioned on a time basis where the tenancy has ended mid-term following a surrender.[12] For details, see Payment of rent.

Fee charged

A landlord/agent may charge a fee if the tenant/licensee asks to surrender their tenancy/licence.

With effect from 1 June 2019, some private landlords and letting agents are prohibited from charging more than the loss incurred by the landlord (for example, any loss in rental income), or the reasonable costs of the agent (such as marketing costs), in relation to the early termination of the tenancy.[13] This prohibition, introduced under the Tenant Fees Act 2019, only applies to:[14]

  • an assured shorthold tenancy
  • a licence to occupy housing (including to a lodger)
  • a tenancy granted to a student by a specified educational institution.

The prohibition does not apply where:[15]

  • the tenant/licensee signed the tenancy/licence agreement (or agreed to it) before 1 June 2019
  • a statutory periodic tenancy arises during the year after 1 June 2019.

In these situations, the prohibition on the level of fee charged for agreeing to a surrender does not apply until 1 June 2020.

[1] s.1(3) of the Law of Property (Miscellaneous Provisions) Act 1989.

[2] s.52 Law of Property Act 1925.

[3] Artworld Financial Corporation v Safaryan and others [2009] EWCA Civ 303; Belcourt Estates Ltd v Adesina [2005] EWCA Civ 208.

[4] Preston BC v Fairclough (1983) 8 HLR 70, CA; Chamberlain v Scalley (1994) 26 HLR 26, HA

[5] Sanctuary HA v Campbell (2000) 32 HLR 100, CA.

[6] Laine v Cadwallader (2001) 33 HLR 397, CA.

[7] Leek and Moorlands Building Society v Clark [1952] 2 All ER 492, CA.

[8] see, for example, Dodd v Acklom (1843) 134 E.R. 1063.

[9] Dodd v Acklom (1843) 134 E.R. 1063.

[10] Mellor v Watkins (1874) LR 9 QB 400.

[11] Parker v Jones [1910] 2 QB 32; Basingstoke and Deane BC v Paice (1995) 27 HLR 433.

[12] Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Anor [2015] UKSC 72; Ellis v Rowbotham [1900] 1 QB 740, CA.

[13] para 7, Sch.1 Tenant Fees Act 2019.

[14] ss.1, 2, 3 and 28 Tenant Fees Act 2019.

[15] p.8, Tenant Fees Act 2019: guidance for landlords and agents, MHCLG, April 2019.

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