The tenancy was for seven years. Shortly after its creation, the tenant left the keys with the agent and asked him to dispose of it or make the best bargain for surrender he could, and left for America. A tenant not being found, the agent returned the keys to the Landlord, who advertised it for reletting. Save for a short period until it was relet it was vacant. The tenant argued that the occupation by the landlord’s workmen took effect as an implied surrender at law.
Held: The court considered when there might be an implied surrender of a tenancy and particularly when the tenant might claim an estoppel. There can be no estoppel creating a surrender of a lease by a mere verbal agreement to surrender. There had to be, in addition, some act done which was inconsistent with the continuance of the lease.
Brett LJ said: ‘There can be no estoppel by mere verbal agreement; there must be in addition to such agreement some act done which is inconsistent with the continuance of the lease. If after the agreement the landlord actually takes possession or does what virtually amounts to it, if he not only attempts to let, but actually does let, then there is a palpable act done with regard to the premises raising an estoppel within the rule laid down in Nickells v Atherstone . . following Lyon v Reed.’ and ‘The plaintiffs’ workmen, were, it is true, let into two of the rooms for a time, but that was not by way of taking possession.’
Cockburn CJ said: ‘The mere attempting to let does not amount to an estoppel. The landlords did nothing but what they might reasonably be expected to do under the circumstances for the benefit of all parties.’ As to the occupation by the workmen: ‘But up to that date they had not done such an act, for they had not virtually taken possession of the premises; and in order to estop the lessors, so as to constitute a surrender by operation of law, there must be a taking of possession. I do not say a physical taking of possession, but, at all events, something amounting to a virtual taking of possession. But here there was no such taking of possession.’ and ‘As for the fact that the plaintiffs’ workmen used two of the rooms in 1870, I do not think that any jury ought to hold that to be equivalent to a taking of possession, for it is, under the circumstances, quite consistent with an intention to hold the defendant to his lease.’
. . And ‘The plaintiffs then, by letting the premises to a new tenant, put an end to the defendant’s term from that date, for they thereby did an act so inconsistent with the continuance of the defendant’s term, that they were estopped from denying that it was at an end. But up to that date they had not done such an act, for they had not virtually taken possession of the premises; and in order to estop the lessors, so as to constitute a surrender by operation of law, there must be a taking of possession. I do not say a physical taking of possession, but, at all events, something amounting to a virtual taking of possession. The plaintiffs, the landlords, took the keys because they could not help themselves, the defendant being gone and, for all they knew, not likely to return.’
Bramwell LJ regarded the fact that the rooms were used as simply a natural thing for them to do in circumstances where they thought the defendant was not going to return.
Cockburn CJ, Brett LJ, Bramwell LJ
[1877] 2 QBD 575
England and Wales
Cited by:
Cited – Ealing Family Housing Association Ltd v McKenzie CA 10-Oct-2003
The defendant and his wife separated when she left the flat they shared. She accepted a new tenancy of other premises. The landlord claimed possession of the flat, saying that the tenancy had ended.
Held: There was no express surrender within . .
Cited – Matthews v Pournasrollahzadeh and Another CA 9-Mar-1998
The tenant fell into arrears, and discussed a surrender with the landlord. It had been intended that the landlord would waive any arrears, but he then claimed that there had been an implied surrender by law, and that the arrears remained.
Cited – John Laing Construction Ltd v Amber Pass Ltd ChD 7-Apr-2004
The landlord resisted the exercise of a break clause saying that the entire premises had not been vacated. The difference was as to whether mere vacation was enough, or whether the tenant had to do some further positive act. The tenant had left . .
Cited – Relvok Properties Ltd v Dixon CA 1972
A lease was assigned to a Mr Krokidis who then departed. The landlords instructed Estate Agents to change the locks. The defendants said that that amounted to a surrender of the lease.
Held: They were wrong: ‘In my judgment Judge Irving . .
Cited – Burrows v Brent London Borough Council HL 31-Oct-1996
The authority had obtained a possession order from its secure tenant but then agreed to accept payments toward the arrears. The tenant applied for and was granted a declaration that she had on that agreement acquired a new tenancy. The authority . .
Cited – Artworld Financial Corporation v Safaryan and Others CA 27-Feb-2009
The parties disputed whether the landlord had accepted the surrender of a lease. The tenant had handed in the keys. The landlord claimed rent for the subsequent period. The court had found surrender by operation of law, the landlord taking several . .
Cited – Padwick Properties Ltd v Punj Lloyd Ltd ChD 9-Mar-2016
The tenant had left the property, their solicitors writing informing the landlord that it had vacated the Property and asserting that ‘the security and safety of the Property will revert to your client.’ The keys were returned, and on the insolvency . .
Lists of cited by and citing cases may be incomplete.
Estoppel, Landlord and Tenant
Leading Case
Updated: 02 November 2021; Ref: scu.187715
