Surrender of a tenancy

A surrender is a voluntary agreement between the landlord and tenant that the tenancy has come to an end. It is sometimes known as a mutual surrender.

A surrender terminates the tenancy, whether it is fixed term or periodic.

A surrender can be express or implied.

An express surrender is where landlord and tenant both sign a legal document that states that the tenancy will end by 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]

A surrender of the tenancy can be implied by the actions of the landlord and tenant. This is also referred to as surrender by operation of law.

There must be an unequivocal act or series of acts, by tenant and landlord, that are inconsistent with the continuation of the tenancy.[3]

The actions of both landlord and tenant must amount to an acceptance that the tenancy has ended. For example, if the landlord and tenant agree that the tenancy will end and the tenant returns possession to the landlord.

Grant of a new tenancy

The grant of a new tenancy for all or part of the same property can amount to a surrender if it is to take effect during the term of the existing tenancy. The tenant does not have to give up possession. For example, where someone signs a joint tenancy, this can act as a surrender of an existing sole tenancy of the same property.[4]

Handing back the keys

An implied surrender can take place where:[5]

• the tenant returns the keys to the landlord with the intention of ending the tenancy

• the landlord accepts the keys

• the landlord agrees to the termination of the tenancy with immediate effect

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] The landlord's actions must show they have unequivocally accepted the surrender.

Tenant leaves without notice

Surrender does not automatically occur if a tenant leaves the property without giving notice to the landlord, even if that absence is for a long period and rent is owing.

Where tenant has left owing a substantial sum of money and has been absent for a significant time, an application by the landlord under trespasser proceedings might be sufficient for a court to regard the tenancy as surrendered by operation of law.[7]

Abandonment

Abandonment is a term used to describe when a tenant leaves a property without giving prior notice to the landlord or formally terminating the tenancy. The term has no specific legal meaning.

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.

Breach of tenancy agreement

Many tenancy agreements 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.

The surrender of a joint tenancy is only effective where each of the joint tenants agrees to the surrender.[8]

Where there is a dispute, the court should be more cautious about inferring surrender of a joint rather than sole tenancy. A joint tenancy had not been surrendered where one tenant had moved out and requested rehousing while the other remained. There was no evidence that the first tenant had been excluded from the property. An internal document from the landlord recording a request to change the tenancy from joint to sole was not sufficient evidence that the tenants had acted unequivocally to surrender the tenancy.[9]

Where there are joint landlords an implied surrender of a tenancy must be agreed with each of the joint landlords.[10] A deed of surrender must be signed by all joint landlords.

When one joint landlord can be said to be acting as an agent for the other, they can accept a surrender on behalf of all of the landlords. 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. They were acting as the other joint landlord's agent.[11]

It may not be sufficient to surrender to only one joint landlord where both joint landlords have taken an active role in the tenancy and it is not clear that both agree to the surrender. For example, if the tenant knows there has been a relationship breakdown between the joint landlords. This might mean 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.

Where a surrender of the head tenancy is agreed by the head landlord and the tenant, this does not automatically terminate any subtenancy granted by the tenant.[12]

The subtenancy continues on the same terms and is binding on the head landlord. This is the case even if the subtenancy was granted without the landlord's consent.[13]

Rent paid in advance cannot be apportioned on a time basis where the tenancy ends mid-term by a surrender.[14]

A landlord or agent can charge a fee if the tenant asks to surrender their tenancy.

Most 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).[15]

This prohibition applies to:[16]

• an assured shorthold tenancy

• a licence to occupy housing (including to a lodger)

• a tenancy granted to a student by a specified educational institution

Find out more about banned tenant fees.