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Surrender
Abandonment by tenant - inaction by landlord
The court of appeal has approved the following statement of the law at page 849 of the 6th edition of Megarry and Wade: The Law of Real Property:"Abandonment of the premises by the tenant without more (even if rent is unpaid) is not a surrender, because the landlord may wish the tenant's liability to continue. Nor is the delivery of the key of the premises to the landlord enough by itself. Even if he accepts it, it must be shown that he did so with the intention of determining the tenancy ... and not merely because he had no alternative." In this case the property had been let to T in August 2000. T never paid any rent and left in November 2000. L knew this and made no claim for rent at the next quarter day. The property was then left empty for many months because the landlord was too busy to deal with it. The judge held that this operated as a surrender of the tenancy on or about that date, so that rent was not payable thereafter. L appealed:
Held: There was no surrender. Peter Gibson LJ:"30. The doctrine of surrender by operation of law is founded on the principle of estoppel, in that the parties must have acted towards each other in a way which is inconsistent with the continuation of the tenancy. That imposes a high threshold which must be crossed if the tenant is to be held to have surrendered and the landlord is to be held to have accepted the surrender.
31. The effective re-delivery of possession by the tenant and its acceptance by the landlord are vital. Thus there will be a surrender when the tenant returns the keys of the premises and the landlord accepts them in circumstances which indicate that the tenancy thereafter no longer exists. The landlord must take possession in such a manner as to estop him from denying that the tenancy is at an end.
32. the facts relied on [in this case], being omissions on the part of the landlord, do not amount to unequivocal conduct by the landlord accepting any surrender. No authority has been shown to us in which mere inaction is enough. Griffiths LJ in Preston Borough Council v Fairclough (1982) 8 HLR 70, at page 73, does say that:
If it could be shown that a tenant had left owing a very substantial sum of money and had been absent for a substantial time, then an application by the landlord under Order 24 might well be sufficient for a court to regard the tenancy as surrendered by operation of law ...
33. To the extent that that tentative suggestion is based on the failure by the landlord to assert his rights for a substantial time, it is one about which, with all respect to Griffiths LJ, I would have serious reservations. In my judgment mere inaction would not be unequivocal conduct by the landlord. However, every case must turn on its own particular facts. It is sufficient to say that in the present case it has not been shown that any surrender has been accepted by the claimant. Comment: Note that this is a case where the tenant is seeking to assert that there has been surrender so as to avoid continuing liability to pay rent. Where the landlord asserts that there has been a surrender it will usually be much easier for him to establish that he has done an act accepting the tenants giving up of the property.
Bellcourt Estates Ltd v Adesina [2005] EWCA Civ 208; [2005] 18 EG 150.
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