A lease can be surrendered in one of two ways – expressly, by deed, or impliedly by operation of law. This article sets out examples of what constitutes a surrender of a lease by operation of law.
The conduct of the landlord and the tenant is what a surrender by operation of law is inferred from, not the actual intention of the parties. The conduct must portray an acknowledgement by both parties that the lease has ended; alternatively, conduct can amount to surrender if it is shown to be inconsistent with the continuation of the original lease.
Examples of conduct that would amount to surrender
- Where the existing tenant is granted, by the landlord, a tenancy at will. Case law has determined that the creation of a tenancy at will, which is inconsistent with the original lease, amounts to surrender by operation of law.
- Where a tenant willingly vacates the property which is then subsequently occupied by the landlord; or, is occupied by a third party with the consent of the landlord for several weeks. In addition to this, the landlord (or those authorised by the landlord) must show acts of bettering the property; for example, decorating to make it suitable or more desirable for re-letting.
- Where the tenant either a) requests the property is let to a third party, or b) directs under tenants to pay rent directly to the landlord. This will only amount to surrender where the landlord is agreeable to such arrangement and the same is evidenced by conduct i.e. the landlord letting the property to the third party as requested or accepting payment of rent direct from an under tenant.
As a caveat to the first point above it is important to note that, should the newly created tenancy become invalid for whatever reason, then the existing lease would remain and it would be deemed that no surrender had taken place.
Legal advice should be sought if you are considering surrendering a lease or tenancy. For more information on how Stephens Scown could help you with this, please do not hesitate to contact us.