The court examined the principle of the surrender of a lease by operation of law: ‘. . . all the old cases will be found to depend on the principle to which we have adverted, namely, an act done by or to the owner of a particular estate, the validity of which he is estopped from disputing, and which could not have been done if the particular estate continued to exist. The law there says, that the act itself amounts to a surrender. In such case it will be observed there can be no question of intention. The surrender is not the result of intention. It takes place independently, and even in spite of intention. Thus, in the cases which we have adverted to of a lessee taking a second lease from the lessor, or a tenant for life accepting a feoffment from the party in remainder, or a lessee accepting a rent-charge from his lessor, it would not at all alter the case to show that there was no intention to surrender the particular estate, or even that there was an express intention to keep it unsurrendered. In all these cases the surrender would be the act of the law, and would prevail in spite of the intention of the parties.’
Baron Parke: ‘In order to ascertain how far … cases can be relied on as authorities, we must consider what is meant by a surrender by operation of law. This term is applied to cases where the owner of a particular estate has been a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist. There the law treats the doing of such act as amounting to a surrender. Thus, if a lessee for years accept a new lease for his lessor, he is estopped from saying that his lessor had not power to make the new lease; and, as the lessor could not do this until the prior lease had been surrendered, the law says that the acceptance of such new lease is of itself a surrender…’ and ‘If we apply these principles to the case now before us, it will be seen that they do not at all warrant the conclusion, that there was a surrender of the lease of the 7th of April, 1812, by act and operation of law. Even adopting, as we do, the argument of the plaintiff, that the delivery up by Ord and Planta of the lease in question affords cogent evidence of their having consented to the making of the new lease, still there is no estoppel in such a case. It is an act which, like any other ordinary act in pais, is capable of being explained, and its effect must therefore depend, not on any legal consequence necessarily attaching on and arising out of the act itself, but on the intention of the parties.’ and ‘The acts in pais which bind parties by way of estoppel are but few, and are pointed out by Lord Coke, Co Litt, 352a. They are all acts which anciently really were, and in contemplation of law have always continued to be, acts of notoriety, not less formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate, and the like. Whether a party had or had not concurred in an act of this sort, was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed. But in what uncertainty and peril will titles be placed, if they are liable to be affected by such accidents as those alluded to by Mr Justice Bayley.’
Judges:
Baron Parke
Citations:
(1844) 13 MandW 285, [1843-60] All ER Rep 178
Jurisdiction:
England and Wales
Cited by:
Cited – Allen and Another v Rochdale Borough Council CA 23-Mar-1999
Land was sold. It had been used as playing fields. The freehold and leasehold interests in the land were held by the respondent, and the claimants asserted it was held as bare trustees for them as charitable trustees for the school foundation. The . .
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 – Mattey Securities Limited v Ervin, Sutton, Mitchell CA 3-Apr-1998
After the insolvency of an assignee of a lease, the landlord talked with possible new tenants, and the original lessee now said that the landlord had impliedly accepted a surrender of the original lease, thus releasing him from continuing liability. . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Estoppel
Updated: 07 December 2022; Ref: scu.187386
