Property Law uk

Maintained by Gary Webber

Surrender by operation of law

This page contains the reports of two cases. The first deals with the situation where the tenant abandons the premises and the landlord simply does nothing. Is the tenant then entitled to claim that the landlord has surrendered? The short answer is no, even if the rent is not paid.

The second case is concerned with a situation where a landlord's acts did amount to a surrender - even though he said he wasn't surrendering. It is a very useful case as it contains a very clear restatement of the principles that apply when one is saying that there has been a surrender by operation of law.

(See also the article on Surrender and re-grant).


Abandonment by tenant

Inaction by tenant

Summary

The CA 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."
Facts

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 ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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