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?