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 :-
“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  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  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 , 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 , 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 , Mellor v. Watkins (1874) and Cow v. Casey  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.