Can a landlord refuse to accept early surrender of a tenancy?

Where a tenant expresses a wish to leave during a fixed term or vacate without giving the notice defined in the tenancy agreement, this is an offer to surrender. A landlord may accept or refuse such an offer.


Surrender by operation of law


An agreement by the landlord and the tenant that the tenancy shall be put an end to, acted upon by the tenant leaving the premises and the landlord by some unequivocal act taking possession, amounts to a surrender by operation of law. Phene v Popplewell (1862) 12 C.B.N.S. 334.] The giving and taking of possession must be unequivocal.


Acceptance of keys


Acceptance of the keys by the landlord is not in itself necessarily a surrender; it depends why the keys were accepted.


Acceptance of keys in lieu of notice


In Laine v Cadwallader (2001) 33 H.L.R. 36 the tenant was required to give at least four weeks notice to quit. The act of putting the keys through the landlord’s letterbox amounted to an offer by the tenant to surrender the tenancy early, which the landlord by implication accepted as the required notice commencing on that day. The landlord was therefore entitled to recover rent equivalent to that four week notice period.

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