Implied surrender (which I mentioned also here) is a useful rule in landlord and tenant law.

In most cases if a tenant fails to give up possession of a property, the landlord has to get a court order before he can re-take the property (and even then he has to use the court bailiffs if the tenant still doesn’t go).  However there are a few occasions when the landlord can re-take possession without having to go through the court procedure.  This is when there is an ‘implied surrender’.

Implied surrender is when the landlord and tenants conduct is inconsistent with an intention to continue with the tenancy.  It is ‘implied’ because you have to work it out from the conduct of the parties.  As opposed to an express surrender, where you generally have a deed setting out what was agreed, so you know.

There is an interesting case report in Legal Action Magazine, called Sable v. QFS Scaffolding Ltd (actually a commercial case regarding a builders yard) where the Judge made some helpful comments.  As these principles will no doubt also apply to residential cases, I thought it would be helpful to take a look at them here.

Implied surrender and surrender by operation of law

These are two phrases which are both used in similar circumstances. The Judge confirmed in the case that they are in fact both the same thing.

Its not what the parties intend which is important but what they actually do

So if the tenant fails to pay rent, moves all her belongings out of the property and leaves the keys behind, she cannot complain if the landlord goes in and changes the locks.  Her actions are not consistent with those of someone who wants to continue being a tenant.

That is the most common situation, but there can be others.  Whether the circumstances are sufficient to show that the tenancy has been surrendered will depend on the facts.  Here are some quotations from the judgment :

• ‘the conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended’
• ‘there must be either a relinquishment of possession and its acceptance by the landlord, or other conduct consistent only with the cesser of the tenancy’
• ‘the circumstances must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended’
• ‘Where the conduct of a party is inconsistent with the continuation of the tenancy, that party is estopped from contending that the tenancy subsists’
• ‘where both parties act on the basis that the tenancy has ended, the result will be that the tenancy has ended’

Although intention is important, its not what their intention actually was (ie what thoughts were in their head) but what their actions showed to be their intention.  Which is different.

Landlord and tenant law – the time of surrender

Another interesting point is about the time of the surrender:

the surrender is treated as having taken place immediately before the act to which the landlord or the tenant is a party;

Which reinforces my view in my urban myths post that abandonment notices are unnecessary.

What is your view? Have you come across any interesting example of implied surrender?

However they are a well known tactic among landlords and letting agents. What are they?

What is an abandonment notice?

An abandonment notice is a notice fixed to the outside of premises which a landlord believes to have been abandoned by his tenant. It gives notice that the locks have been changed and informs the tenant that should he return within a specific period of time (e.g. 14 days) he can obtain the keys from the landlord, but that if he fails to return during that time, the property will be repossessed.

It is understandable why landlords and agents want to use these notices. Court proceedings for possession can be expensive and time consuming. While they are ongoing, landlords are losing rent. Posting a 14 day abandonment notice gives the illusion of doing something legal and means that they don’t have to pay legal costs to those pesky solicitors.

But is an abandonment notice legal?

Personally I think they are not only a complete waste of time, but also a risky course of action. Why?

Well, most importantly, the Protection from Eviction Act 1977 makes it clear that it is both a civil wrong and a criminal offence to repossess a property other than via a court order for possession. So any landlord who repossesses without one is always taking a risk.

Implied surrender
There is a legal rule which states that if the conduct of the tenant is inconsistent with an intention to continue with the tenancy, this will be considered to be an implied surrender of the property, which the landlord can accept by going in and changing the locks. However it is the action of the tenant which creates the implied surrender, not the action of the landlord in posting a notice on the door.

If a tenant has genuinely abandoned the property, if it really is an implied surrender situation, then an abandonment notice is unnecessary. The landlord can repossess immediately. The usual signs of a genuine abandonment are removal by the tenant of all his possessions and, most importantly, leaving the keys behind. Giving up the keys is normally considered to be a symbol of giving up possession of the property.

Long absences
However if the tenant is just not there for a long time, this does not necessarily mean he has abandoned the property. He could be on holiday, he could be in jail or he could be in hospital. None of these situations entitle the landlord to recover possession without a court order.

If a tenant comes back from being hospitalized for six weeks after a nasty car accident, to find that his property has been repossessed by his landlord, the fact that an abandonment notice was posted on the door for 14 days will not, so far as I can see, afford any defence whatsoever to a claim against the landlord for unlawful eviction, compensation, and (if the property has not been re-let) an injunction ordering the landlord to let him in again.

How can the tenant be expected to see an abandonment notice if he is laid up in hospital?

There is another problem with these notices. If they are fixed to the outside door you are telling people that the property is empty. Which might be something you would prefer burglars and potential squatters not to know about.

Is there ever any point in using an abandonment notice?

In my view it will not afford any defence to a civil claim against the landlord for unlawful eviction. However unlawful eviction is also a criminal offence. It is just possible that leaving a warning notice on the door could afford some sort of defence to a prosecution for unlawful eviction.

However I have not been involved in any prosecutions myself – if any Local Authority prosecutors are reading this, please can you leave a comment?

If abandonment notices are ever used, they should only be used on internal doors, perhaps for a room in a shared house. Don’t invite problems by putting them on the external street door. And bear in mind that they are probably a complete waste of time.

Have you used an abandonment notice? Have you any views on their legality? Are you aware of any cases where they have been used successfully as a defence to either a civil or a criminal claim for unlawful eviction?

Of course it is even more frustrating if you think that the tenant may actually have gone. But if the keys have not been returned and at least some of the tenants possessions are still in the property, you cannot count on this. If the landlord goes in and changes the locks when the tenant has not really left, then not only is he liable for prosecution, but also the tenant can sue him for unlawful eviction. And claim compensation. A nice way to wipe out those rent arrears.

I mention all this because I was discussing this very problem with one of my clients this morning. Sadly (for him that is) the keys have not been returned and the tenants still have clothes and other stuff inside. We decided that it was really too risky for him to even consider going in, so I have now drafted up the paperwork for the court claim and we will be issuing shortly. But its such a waste if the tenant really has gone after all. Not only of my clients time and money, a property left vacant when someone else could be living there (he has tenants waiting to go in), but also a waste of court time which could probably be better used for something else.

The Law Commission have been reviewing housing law generally, and I understand that it is planned to bring in a new procedure to cover cases of abandonment, similar to that currently used in Scotland. But the promised reforms are taking a long time (the Law Commission were due to bring out a final report and draft bill last summer) and in the meantime landlords are faced with a choice between bringing time consuming court proceedings or risk being sued for unlawful eviction.

Still, looking on the bright side, its all more work for me.