Implied surrender
Following comments on my last Newsround about a story in the papers where Havering Council homelessness unit on the edge of London/Essex advised a woman to re-occupy accommodation she had left, I thought I would delve a bit further into the vexed topic of implied surrender or as it is also known:-
“Surrender by operation of law”
The legal side
The Newsround format did not allow me the space to expand beyond the basic principle that for surrender by operation of law to have taken place there must have been an unequivocal act of surrender and also an unequivocal act of acceptance of that surrender.
and both sides
Whenever this comes up in a case like the Havering one, landlords understandably jump up and down (Thanks for the phrase Kate) advancing the notion that they have been burdened by what the agent in the Havering case described as “Ludicrous advice” given to retain the accommodation but there is another side to the coin.
A tenant may move out, genuinely thinking that they have surrendered the tenancy, only for the landlord refuse to accept it, leaving the tenant who has moved on, still liable for further rent indefinitely.
Let’s be clear
Before we get into this, that we are not talking about a tenant giving formal notice to end the tenancy, which is known as ‘Express Surrender’ or ‘Termination’.
‘Implied surrender’ is a murky, grey and often confusing world.
Underpinning all of the different backstories which make up the decisions in a range of cases is one main principle, summed up nicely in Sable v. QFS Scaffolding Ltd [2010]:-
“The circumstances (of the surrender) must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended”.
A point reiterated in Chamberlain v. Scalley (1991):-
“There must be unequivocal conduct on the part of both the landlord and the tenant which is inconsistent with the continuance of the tenancy”.
This is a really important point to grasp. There must be no mistake or ambiguities in what happened to end the tenancy, even though the circumstances might appear confusing at first glance.
For a tenancy to have been ended by ‘implied surrender’ the tenant’s conduct must indicate there is no intention to continue with the tenancy – this is deemed to be an offer to surrender which the landlord can accept (eg by going in and changing the locks) t in order to end the tenancy.
What kinds of things are we talking about?
A tenant handing back the keys, either in person or by posting them through the landlord’s letterbox or simply leaving them in the property are common instances of ‘implied offers to surrender’.
But just leaving the premises does not end the tenancy in itself.
Tenancies are legal even past death
Bear in mind that in the eyes of the law a tenancy is a very serious thing. Section 1 of the Law of Property Act 1925 tells us that a tenancy is an interest in land, a form of ownership. For that reason even death doesn’t end the legal entity known as a tenancy.
In Preston BC v. Fairclough [1983] the family left owing rent arrears and the council took it that this evidenced that they had surrendered the tenancy and changed the locks but the courts disagreed, saying:-
“The bare fact that a tenant leaves premises at a time when he owes rent is insufficient to enable a court to draw the inference that there has been a surrender”.
Facts speak for themselves
Although the courts in Chamberlain mentioned above, commented that surrender might be considered to have taken place where there was a prolonged absence accompanied by large rent arrears – how long a period is ‘Prolonged’ and how much arrears have to accrue before they would be considered ‘Large’? As with so much housing law it’s a question of fact and degree.
In the case of Zionmor v. Islington LBC [1998] a council tenant got sick of graffiti and having his windows and door smashed by other local residents and put up a notice in the common parts of the building saying that he was leaving the accommodation, before subsequently moving out and leaving a mate inside.
The council were made aware of the note by other residents and changed the locks but the tenant later thought better of it and sought action against the council for re-entry.
The council lost at both County Court and Court of Appeal levels because there had been no act of surrender, the note merely having been left up in the common parts to notify other residents and the council were not entitled to infer surrender from that.
What about where the tenant says they have surrendered but the landlord doesn’t agree?
Back in April 2016, Tessa wrote an interesting piece on the case of Padwick Properties v. Punj Lloyds Ltd (2016). You can read about it here.
This was where the tenants handed back the keys and the landlords even re-marketed the property for a while, a point of evidence that the tenants made much of but which was rejected by the courts, who said that an attempt to re-let by the landlords did not amount to an act of acceptance of surrender and that the keys had only been retained by the landlords for security purposes.
Therefore Punj Lloyds were still obliged to pay the rent.
In Laine v. Cadwallader [2001], the tenants left and put the keys through the landlord’s letterbox, who successfully sued them for 1 month’s rent after they had gone, on the basis that he had not accepted the surrender. The courts taking the view that posting the keys through the letterbox amounted to no more than an offer of surrender, which the landlord was free to refuse.
Why would a landlord want to refuse an unequivocal act of surrender?
Especially if they had problems with that tenant. Surely, if the tenant wants to go, let them go.
Well, one reason is the danger that in displaying an unequivocal act of acceptance they could run into hot water if there is a sub-tenant in the accommodation, that they didn’t know about.
Beware the sub-tenant
In the case of Basingstoke and Deane BC v. Paice [1995], unbeknownst to the council, their tenant, Mr L’Hereux had rented out part of his property to Mr Paice. The council later accepted a surrender of the tenancy before discovering Mr Paice in residence. The courts decided that Mr Paice was now the council’s tenant.
This reasoning also occurs in Parker v. Jones [2010], Mellor v. Watkins (1874) and Cow v. Casey [1949] and it applies even if what had been the sub-tenancy was granted unlawfully.
This is the sole reason why social housing officers, who perform the daily duties of housing management, are always told never to accept a surrender of a property.
So there you go
It’s a rum old business this surrender malarkey.
People who don’t work with housing law tend to think its all about statutes, sub-sections, rules and regulations but actually it’s about people, the maddening, unpredictable ways they act, often working against their own self-interests and the way that decisions constantly evolve to accommodate real lives and situations.
Implied surrender is a classic example of just that.
alan says
November 30, 2017 at 2:48 PMDoes implied surrender exist If a tenant moves out and cancels their council tax at that address and registers for council tax at a new address.
Tessa Shepperson says
November 30, 2017 at 4:32 PMIt will be deemed to be an implied offer from a tenant but it is up to the landlord whether or not he accepts it. As Ben says above, there are two sides to this. The tenant cannot force a landlord to accept without his consent.
Ben Reeve-Lewis says
November 30, 2017 at 4:37 PMA typically illustrative question Alan.
My view is no. A council tax claim elsewhere is not the same thing as relinquishing a tenancy. There is a difference between what looks apparent in an everyday sense and a legal requirement.
Look at Zionmor mentioned above. He placed a note in the hall saying he was leaving but the landlord was not allowed to infer from that act that the tenancy had been surrendered.
The courts are very clear and at pains to emphasise the difference between unequivocal acts and what someone may infer from the actions of another
Dave Griffith says
November 30, 2017 at 6:20 PMI still don’t understand the Havering case you refer to. The tenant moved her belongings out, left the keys in the property and told the agent that she had left. The agent accepted this and collected the keys and did an inventory.
Were Havering arguing that the tenant had not surrendered the property or that the landlord had not accepted it?
Romain says
December 1, 2017 at 9:12 AMThis was not a legal case, but just a council ‘advising’ a tenant. It does not mean that the council was right.
In the article, they quoted the council who said “The client then told staff she had handed the keys back to the Estate Agent and had put her belongings in storage.” so it seems that they admit that the tenant did act in a way suggesting that they considered the tenancy at an end.
According to the article, the council as said “The agents were also reminded that as the case had not gone through the courts, the client had the legal right to remain in the property.”, which, on the face of it, is plainly incorrect.
So I would take this piece of news with a grain of salt, especially since the exact details are not known.
alan says
December 1, 2017 at 7:29 AMThank-you Tessa ns Ben, and in the cold (very cold) light of this morning I realised I may only have given half a thought to it.
I come across cases where the landlord thinks the tenant has left (no furniture, no obvious signs of habitation by looking through a window), but the tenant has not been in contact with the landlord to explicitly surrender the property but I can see that the tenant is now paying Council Tax elsewhere (which I can’t reveal to the landlord) but I often wonder what would happen if the landlord changed the locks and the tenant made a claim for unlawful eviction even though, to me, they seem to be registered as living elsewhere.
If the HB is also being paid for this new address, does that change anything.
Tessa Shepperson says
December 1, 2017 at 7:37 AMThose are all things which go to confirm the tenants ‘offer’, implied, to surrender. However, that is just the tenants’ side of things. A surrender must be two-sided and the landlord must agree too.
A tenant cannot force or impliedly force the landlord to agree to a surrender by his behaviour. However clear.
Even if it is really, really clear, eg by council tax payments, benefit payments elsewhere, etc, that the tenant has left, the landlord can still claim the rent for the rest of the fixed term from him. He cannot be forced to accept the end of the tenancy.
alan says
December 1, 2017 at 11:56 AMSo if the landlord then changes the locks thus taking possession of the property the (ex) tenant cannot turn up later to claim unlawful eviction as the tenant has implied surrender and the landlords actions show he has agreed to that implied surrender.
Tessa Shepperson says
December 1, 2017 at 12:16 PMIts impossible to say for sure – these situations will be decided on their precise facts. But read this post https://landlordlawblog.co.uk/2016/04/19/takes-two-surrender-tenants-cannot-end-tenancy-just-moving/
Ben Reeve-Lewis says
December 1, 2017 at 4:29 PMAlan as Tessa says it is impossible to say for sure. Implied surrender is a common law issue, not statute.
In writing this piece I researched deeply into 4 different law books written by Arden, Luba, Madge-Wyld…..the great and the good, looking for a definitive article and there wasnt one. Its all case law driven by differenet circumstances and as Romain says you cant rely on an accurate report from an article in a local paper
Peter Jackson says
December 3, 2017 at 1:23 PMAs you say we can’t reply on an accurate rreport from a local paper or from one side of the case – https://www.propertytribes.com/council-advises-tenant-to-break-into-rental-t-127631730.html
But it appears that the landlord asked the tenant to leave and from her actions assumed that she had agreed to do so, So going on the basis that the landlord has to do something to definitely accept the tenants offer seems backwards.
Paul says
December 4, 2017 at 3:56 PMIn the Havering case I think an important point is often not discussed. After the council advised the tenant to return (so we’re told in simple terms). What did the agent then do?
If the agents were adamant a surrender had been implied and accepted, why did they not just boot her back out again? They didn’t because the facts were not clear and there was a (good?) chance the council could be right?
Why did the agents not take an expressed surrender from the tenant? Why did they leave it to the ambiguity of it being simply implied? If anything in that case it is the agents at fault and not doing their job properly – not the council?
Ben Reeve-Lewis says
December 4, 2017 at 4:35 PMWhat kicked off the comments on my brief mention on Newsround and prompted me to expand a bit, was indeed an article in a local newspaper.
In my working life I certainly wouldnt take anything from that front as gospel. On the one hand you have what the tenant said, on the other hand you have what the agent said and stirring it all up in the mix is the journo looking to make a story.
I’ve dealt with enough TV, radio and newspapers in the past 7 or 8 years to not notice they always have their own agendas, despite always saying they just want to tell the truth of the story……yeah, right!!!!!
For many years in advice work I have held by the ‘ABC Dictum’ I was taught many years ago”:-
Ask Every question you can think of.
Believe nothing
Check everything.
Only then do you get on the phone and start making waves and even then, sometimes you are making your best guess, simply in order to open negotiations. A situation is rarely presented to an advice team in a neat box with a pink ribbon tied around it. Stories unfold, evidence falls apart on both sides.
I note from the newspaper article that the agents took a step back, indicating that they werent 100% sure of their ground either. And best not…..just do it by the book and avoid the hassle