Implied surrender/ surrender by operation of law – what is it?
Implied surrender (which I mentioned also here) is a useful rule in landlord and tenant law.
In most cases if a tenant fails to give up possession of a property, the landlord has to get a court order before he can re-take the property (and even then he has to use the court bailiffs if the tenant still doesn’t go). However there are a few occasions when the landlord can re-take possession without having to go through the court procedure. This is when there is an ‘implied surrender’.
Implied surrender is when the landlord and tenants conduct is inconsistent with an intention to continue with the tenancy. It is ‘implied’ because you have to work it out from the conduct of the parties. As opposed to an express surrender, where you generally have a deed setting out what was agreed, so you know.
There is an interesting case report in Legal Action Magazine, called Sable v. QFS Scaffolding Ltd (actually a commercial case regarding a builders yard) where the Judge made some helpful comments. As these principles will no doubt also apply to residential cases, I thought it would be helpful to take a look at them here.
Implied surrender and surrender by operation of law
These are two phrases which are both used in similar circumstances. The Judge confirmed in the case that they are in fact both the same thing.
Its not what the parties intend which is important but what they actually do
So if the tenant fails to pay rent, moves all her belongings out of the property and leaves the keys behind, she cannot complain if the landlord goes in and changes the locks. Her actions are not consistent with those of someone who wants to continue being a tenant.
That is the most common situation, but there can be others. Whether the circumstances are sufficient to show that the tenancy has been surrendered will depend on the facts. Here are some quotations from the judgment :
- ‘the conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended’
- ‘there must be either a relinquishment of possession and its acceptance by the landlord, or other conduct consistent only with the cesser of the tenancy’
- ‘the circumstances must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended’
- ‘Where the conduct of a party is inconsistent with the continuation of the tenancy, that party is estopped from contending that the tenancy subsists’
- ‘where both parties act on the basis that the tenancy has ended, the result will be that the tenancy has ended’
Although intention is important, its not what their intention actually was (ie what thoughts were in their head) but what their actions showed to be their intention. Which is different.
Landlord and tenant law – the time of surrender
Another interesting point is about the time of the surrender:
the surrender is treated as having taken place immediately before the act to which the landlord or the tenant is a party;
Which reinforces my view in my urban myths post that abandonment notices are unnecessary.
What is your view? Have you come across any interesting example of implied surrender?
Yonnette Roberts says
May 5, 2011 at 10:13 AMVery interesting reading I work for LA and I have a number of cases where tenants have claimed to have moved into a property, signed on for HB and then the landlord never hear from them again. No rent is paid apart from the deposit and first months rent. In these cases I have been telling landlords to use the abandonment notices process. I am not sure where this process came from but it appears to give a common sense approach for a defence. (Landlords are told of the offence if the tenant does return) however, it have never been tested in court and I have never had any come back from the tenants. Interestingly I would take Civic action against a landlord if he/she did evict a tenant without a Court order where evidence supports this. I will now do some research on the matter. thanks
Tessa Shepperson says
May 5, 2011 at 10:25 AMHi Yonnette, thanks for your comment. It is interesting to hear about the tenants HB scam (as I presume it is).
I have always suspected that the abandonment notices came from landlords’ reluctance to use the courts to get a possession order. Understandable I suppose in view of the cost and time. Much easier and cheaper to slap a notice on the door.
However to the best of my knowledge, an abandonment notice will not be a satisfacatory defence to a tenant for a civil claim for damages for unlawful eviction. The landlords best defence here is implied surrender.
An abandonment notice may be a defence to a criminal prosecution for unlawful eviction though, which would normally be brought by the LA. However I don’t think these are done very often. What is your experience?
westminster says
May 7, 2011 at 2:26 PM“the surrender is treated as having taken place immediately before the act to which the landlord or the tenant is a party”
Would you clarify what this means? I’m struggling!
Tessa Shepperson says
May 7, 2011 at 2:31 PMMy understanding of this is that it will normally be the act of re-entering the property.
westminster says
May 7, 2011 at 4:52 PMThat’s what I suspected but it mentions the tenant, too. Can’t see how a surrender could take place ‘before the act to which the tenant is a party’, assuming that act must be the offer to surrender (e.g. vacating etc)? *baffled*
Tessa Shepperson says
May 8, 2011 at 2:03 PMThe answer will be in the case report – I know I read it at the time but did not express it very well. The case report is here http://www.bailii.org/ew/cases/EWCA/Civ/2010/682.html
Note that the case was not a residential situation which is why some of the quotes sound odd in a residential landlord and tenant context.
Rose Anderson says
May 8, 2011 at 3:08 PMI have a tenant who has informed LA that he has moved out so they now want council tax from me. The tenant is not living at the property and has stolen all the furniture and white goods.
He still has the keys and we have no way of contacting him. Is this implied surrender?
Tessa Shepperson says
May 9, 2011 at 8:47 AMIt sounds like it. If they have nicked all your stuff they are not likley to sue you for compensation anyway – you would have a counterclaim for the loss of your property.
However note that I can’t give ‘advice’ just general tips. Please see the disclaimer in the footer below.
Rose Anderson says
May 9, 2011 at 11:15 AMThanks for your fast reply. It is spot on I talked to my solicitor who specialises in property law and he says the same thing.
I won,t get the rent arrears back too costly to pursue, but police investigation the theft of the goods can find out where the ex tenant has moved too under section 35 of the dpa.
Even if I do not get the goods back I take comfort from the fact they will not get off scot free.
I also suspect these rogue tenants to be what is generally called professional tenants and they will just keep moving on to the next unsuspecting landlord.