Where a tenant expresses a wish to leave without giving the notice defined in law or as agreed with the landlord, this is an offer to surrender. A landlord may accept or refuse such an offer.
There must be unequivocal conduct on the part of both the landlord and the tenant which is inconsistent with the continuance of the tenancy – Chamberlain v. Scalley (1991)
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.
Some examples:
- The tenant hands back the keys, either in person or by posting them through the landlord’s letterbox or leaving them in the property = no surrender
- The landlord undertakes repairs or maintenance he is entitled to undertake = no surrender
- The landlord re-markets the property = no surrender
- The landlord accepts the keys and agrees to the termination of the tenancy with immediate effect = surrender
- The landlord or his family move into the property = surrender
- The landlord moves another tenant into the property = surrender
- The landlord moves his furniture into the property = surrender
- The landlord grants a new tenancy to the the existing tenant = surrender