The landlord sought to recover arrears of rent. The tenant said that she had surrendered the lease of the properties. The judge had held that she ceased to occupy the premises from November 2000, after which the landlord did not send a demand for the December rent, which the judge took to be an acceptance of the surrender.
Held: The landlord’s appeal was allowed, and he was entitled to his rent.
Longmore LJ adopted the description of abandonment in Megarry and Wade: ‘Abandonment of the premises by the tenant without more (even if rent is unpaid) is not a surrender, because the landlord may wish the tenant’s liability to continue. Nor is the delivery of the key of the premises to the landlord enough by itself. Even if he accepts it, it must be shown that he did so with the intention of determining the tenancy . . and not merely because he had no alternative.’ The requirement that the conduct of the parties must be inconsistent with the continuation of the lease is ‘a high threshold.’
Peter Gibson LJ set out the conditions for a deemed surrender: ‘A surrender may be express or by operation of law. The judge found that the relevant surrender was by operation of law. That requires not only the re-delivery by the tenant of possession of the demised premises, but also the acceptance by the landlord of that re-delivery. Otherwise the landlord is entitled to look to the tenant to pay the rent throughout the whole of the term of the tenancy, it not having been agreed that the tenant should have the right to surrender the tenancy prematurely (see Barrett v Morgan [2000] 2 AC 264 at pages 270, 271 per Lord Millett). Accordingly, the landlord’s consent is necessary. No deed or other writing is required, but the conduct of the parties must unequivocally amount to an acceptance that the tenancy has been surrendered.
The doctrine of surrender by operation of law is founded on the principle of estoppel, in that the parties must have acted towards each other in a way which is inconsistent with the continuation of the tenancy. That imposes a high threshold which must be crossed if the tenant is to be held to have surrendered and the landlord is to be held to have accepted the surrender. ‘
Judges:
Lord Justice Peter Gibson Lord Justice Longmore Lord Justice Wall
Citations:
[2005] EWCA Civ 208, [2005] 2 EGLR 33
Links:
Jurisdiction:
England and Wales
Citing:
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 – London Borough of Brent v Sharma and Vyas CA 1992
A tenancy of a flat was granted to Miss Vyas. She occupied it with Mr Sharma. They later married. She moved out and was given the tenancy of a council house elsewhere. She then wrote to Brent, the landlords, to say she was no longer sharing with Mr . .
Dicta doubted – Preston Borough Council v Fairclough CA 1982
The landlord sought to argue that the tenant had surrendered his tenancy.
Held: ‘The bare fact that a tenant leaves premises at a time when he owes rent is certainly insufficient to enable a court to draw the inference that there has been a . .
Cited – Tarjomani v Panther Securities Ltd CA 1983
The tenant disputed whether he had surrendered the property in the lease.
Held: The court considered the basis of an implied surrender: ‘In my judgment, it is indeed estoppel that forms the foundation of the doctrine. The doctrine operates . .
Cited – Proudreed Ltd v Microgen Holdings Plc CA 17-Jul-1995
The handing back of keys without more does not of itself constitute a lease surrender. The passage in Tarjoumi as to implied surrender would have been more correct if there was added the phrase: ‘or such as to render it inequitable for the landlord . .
Cited – Barrett and others v Morgan HL 27-Jan-2000
The landlord served a notice to quit on the head tenant under an understanding that the head tenant would not serve a counter notice. The effect was to determine the head and sub-tenancy. It acted as a notice to quit, and despite the consensual . .
Cited – Barrett and others v Morgan HL 27-Jan-2000
The landlord served a notice to quit on the head tenant under an understanding that the head tenant would not serve a counter notice. The effect was to determine the head and sub-tenancy. It acted as a notice to quit, and despite the consensual . .
Cited by:
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 – QFS Scaffolding Ltd v Sable and Another CA 17-Jun-2010
The parties disputed whether a lease from S to LDC had been surrendered. S and QFS were negotiating for a renewal lease. No new lease having been agreed the parties agreed to a monthly sum to be paid pending agreement. L then let to a third party . .
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.
Landlord and Tenant
Updated: 29 June 2022; Ref: scu.223226