Surrender

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Surrender

Love v Heggarty

In a classic 'moonlight flit' case, a landlord who had considered the tenants to have surrendered the property had not been  wrong, and had been unjustified in changing the locks and reletting the property.

A landlord let a flat on a verbal weekly assured tenancy to a couple. The tenants did not pay the rent and arrears began to mount up, so the landlord served an ordinary 4 week notice to quit. This was ineffective.

The landlord claimed that after giving notice one of the tenants had indicated that they would move out, and he said that he saw them packing. On the day that the notice expired the landlord went to the flat, and found the tenants’ belongings in plastic bags. He removed these bags, and changed the locks.  Shortly afterwards, the landlord relet the flat.

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Lutman v Ashford Borough Council (2017)

Lutman v Ashford Borough Council (2017)

Canterbury County Court, 5th October 2017

Mrs Lutman (the Tenant) was taken to hospital in 2012 due to dementia. Mr Lutman continued to reside at the property until 2013 when he was sentenced to 18 months in prison.  Mrs Lutman was transferred to a care home whild Mr Lutman was in prison but the rent and bills continued to be paid from a joint account.  In October 2013 the Council sent an officer to the care home to get Mrs Lutman to sign a document of surrender.

Mr Lutman was released from prison in November 2013 and found the locks had been changed.  The Council stated that they were entitled to possession of the property as Mrs Lutman was not living at the property and Mr Lutman was in prison.  Mr Lutman made a claim against the council for unlawful eviction and the council defended the case.  

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QFS Scaffolding v Sable [2010]

QFS Scaffolding v Sable [2010] EWCA Civ 682

Whilst the facts of this case concern a commercial lease the decision has equal relevance to residential leases. The law on surrender was set out by the judges in the following way:

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Artworld Financial Corp v Safaryan [2009]

The entirety of the landlord’s conduct should be considered when deciding whether they have accepted a surrender. It is their conduct rather than their words that are relevant.

The tenants took a three year tenancy of a house in September 2004, the £390, 000 annual rent being commensurate with the luxury nature of the property. This was payable by instalments, three-monthly in advance. During the tenancy, there were technical troubles with the property. The tenants said that the central heating and swimming pool did not work property, and that despite their complaints to the landlord, a trust company named Artworld, these problems were not fixed as they should have been under the lease. The tenants contended that the landlord’s failure to remedy the defects was so serious that they were entitled to treat the lease as repudiated (terminated).

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Laine and Mitchell v Cadwallader & Cadwallader (2001)

This case concerned tenants, Mr & Mrs Cadwallader who held a periodic assured shorthold tenancy under the Housing Act 1988.  The tenants got behind with their rent, surrendered the keys to the landlord, and promptly left the property.  The landlord brought legal action against the tenants for rent arrears, damage to the property, and rent in lieu of notice.  Case concerned tenant's notice to quit during periodic tenancy. Case confirmed that common law position applies to this situation and tenant liable to paying rent in lieu of notice.

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Barrett v Morgan [2000]

A tenant’s co-operation and consent to being served a notice to quit does not constitute surrender, because the landlord does not require the tenant’s consent in order to terminate the tenancy.

The owner of agricultural land granted a tenancy to two individuals (his sons), who then themselves granted a sub-tenancy to a farmer who farmed the land. The owners and the head-tenants wanted to obtain vacant possession of the land so that they would be able to sell it with vacant possession, so agreed that the owners would serve a notice to quit on the head-tenants. The head-tenants agreed not to serve any counter-notice relying on the relevant provisions of the Agricultural Holdings Act 1986.

The purpose of this agreement was to enable the owners to obtain possession against the sub-tenant farmer, as it was believed that when the notice to quit the head-tenancy expired, both the head tenancy and the sub-tenancy would come to an end.

Although this scheme was effected by the owners serving a notice to quit on the head-tenants, it originated from the two head-tenants. The head-tenants were unable to obtain vacant possession against the sub-tenant by serving on him notice to quit, because the sub-tenant would have been able to rely on the protection given by the 1986 Act. The head-tenants believed that they could not gain possession even by serving a notice to quit themselves, because case law at that time meant that a tenant could no impair or destroy the interest that he had granted to a sub-tenant just by putting an end to his own tenancy. They therefore concluded that the solution was for the tenancy to be ended by the owners.

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King v Jackson [1997]

A tenant who orally offered to leave the demised property after four weeks as she was unable to pay the rent had not surrendered the tenancy. She was able to claim damages for unlawful eviction as the landlady had locked her out of the property.

The owner of a house granted a six month tenancy of a flat contained on the first floor of the house. The written tenancy agreement was lost, but a copy of ‘what it probably was’ was an assured shorthold tenancy agreement for a term of six months.

Less than a month into the tenancy, the tenant found herself unable to pay the rent and orally gave the landlady four weeks notice to quit. The landlady accepted the notice, despite the informality, as both parties intended that it should be acted on. This did not constitute an express surrender of the tenancy as it was not in writing, and as the tenant did not deliver up possession of the property it could not constitute implied surrender. It was not a notice to quit either.

The rent was unpaid in respect of the next two weeks, and within two weeks the landlady had put a card up in a shop window advertising the flat as being available to let. The a prospective tenant was then shown the flat by the tenant, by the landlady’s arrangement, two weeks after the tenant had served notice.

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