Case Law on – Surrender

landlord legal advice on caseHouse of Lords Barrett v Morgan [2000] 2 AC 2 4; [2000] 2 WLR 284; [2000] All ER 48 ; [2000] EGLR 8; (2000)
Times 28 January

Arrangement concerning NTQ not tantamount to consensual surrender of tenancy Freeholders of agricultural land agreed with their tenants that they would serve a notice to quit and that the tenants would not serve a counter notice under Agricultural Holdings Act 1986. The purpose of this agreement was to enable the freeholders to obtain possession against a subtenant.

The Court of Appeal held that this arrangement was tantamount to a consensual surrender of the tenancy and so did not determine the subtenancy. The House of Lords allowed a further appeal. Service of a notice to quit by either a tenant or a landlord by pre-arrangement with the other was not tantamount to a surrender of the tenancy as, unlike a surrender, it did not need the consent of the receiving party to have effect. In this case, the tenants’ consent was unnecessary and the freeholders were only doing with their consent what they were entitled to do without it.

Leek and Moorlands Building Society v Clark [ 9 2] 2 QB 788; [ 9 2] 2 All ER 492, CA

One of two joint tenants cannot surrender a joint tenancy Unless there is express agreement, one of two joint tenants cannot validly surrender a joint tenancy.

High Court Barakat v Ealing LBC [ 99 ] COD 02, QBD

Return of keys and landlord’s acceptance with intention of taking possession a surrender In a case involving liability for non-domestic rates, Brooke J held that a surrender by operation of law occurs where one party does and the other assents to an act which is inconsistent with the continuance of the lease or tenancy. The tenant’s return of the keys and the landlord’s acceptance of them with the intention of taking possession was sufficient to effect a surrender. There are four preconditions to surrender by operation of law:

1) the doing of an act by a party;
2) that the act is inconsistent with the continuation of the tenancy;
3) the assent of the other party; and
4) the intention of the landlord to take possession and accept the termination of the tenancy.

Coker v London Rent Assessment Panel [200 ] EWHC 2 7 (Admin); 9 May 200

Variation to terms of tenancy did not amount to surrender of tenancy and re-grant Mr Coker was the tenant of a flat. For many years there were substantial disputes between him and his landlord. In October 2004 these were settled by a Tomlin order which had the effect of varying the rent, rendering insurance rent non-payable, modifying the covenant against alterations and changing the contract from a business tenancy to an assured tenancy. The rent payable was £950 per month. Later the landlord served a notice of increase of rent under Housing Act 1988 s13. Mr Coker referred the notice to the rent assessment panel (RAP), arguing that it was invalid because the Tomlin order amounted to the surrender of the old tenancy and grant of a new tenancy. The RAP rejected that argument on the basis that the amendments created by the order could not amount to a new tenancy as they were not sufficiently substantial. The RAP inspected the flat and concluded that £1,120 per month was the rent for which the flat could reasonably be expected to be let on the open market in accordance with s14. Mr Coker appealed against that decision. James Goudie QC, sitting as a deputy High Court judge, dismissed the appeal. The Tomlin order had not resulted in any increase in the premises demised or in the length of term. The absence of both features did not mean that there could never be a surrender, but that there would only exceptionally be one. At the date of the Tomlin order, it was common ground that Mr Coker had an assured tenancy and not a business tenancy. The only variations to the tenancy agreement (ie, agreement by the landlord not to enforce the insurance rent and a modification to the covenant against alterations) ‘came nowhere near, individually or cumulatively, to being sufficient to imply a surrender and re-grant’.

County courts Hackney LBC v Ampratum 7 April 200 , Central London Civil Trial Centre

Not possible to infer surrender where tenant left unwillingly (due to deportation) Ms Bonney-Offei, the second defendant, was a secure tenant. She was deported to Ghana in 1993. In 1994 the council agreed to the assignment of the tenancy to the first defendant. However, that assignment was invalid because the written consent of Ms Bonney-Offei was not obtained. In 2000 Ms Bonney-Offei returned from Ghana and went back into occupation of the premises. The council began possession proceedings, claiming that Ms Bonney-Offei’s tenancy had been surrendered by operation of law and that the first defendant had unlawfully sublet. Bell J, sitting as a judge of the county court, dismissed the claim. There was nothing in the circumstances to justify the inference that there had been a surrender. Ms Bonney-Offei had left unwillingly and could be expected to return, if able, in due course. She had left her family in occupation. It was not possible to infer surrender from her deportation. Her actions did not amount to an unequivocal acceptance that the tenancy had ended.

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