Can there be an implied surrender if the tenant remains in occupation?

Here is a question to the blog clinic from Justin who is a tenant:

My ex-wife and I started renting a property in March 2012 as joint tenants – we separated and my wife moved out in April 2016, while I remained as the sole tenant.

We notified the landlord, however my ex-wife did not provide a formal notice to terminate. Nonetheless, the landlord provided a referral to her new landlord, checked with me that I could afford to keep the tenancy alone, agreed to change the payment dates to match my salary, and told me she would buy a pro-forma tenancy contract for us to sign a new agreement (all this is evidenced in text messages).

However, she never sorted out the new contract.

I left the property in April 2019 and we have since been in dispute over the return of the deposit. The two issues are

• that the landlord wishes to make higher deductions that I have agreed to, but also
• that she states she is holding my ex-wife jointly liable as a tenant because she says the original tenancy never ended.

So I have two questions – from the circumstances described, does it sound like an implied mutual surrender has taken place? And, if so, would this mean that the deposit became unprotected at the point the original tenancy ended, since the landlord provided no information to the DPS?

Answer

If:

• The new tenancy agreement was never signed
• At least one of the tenants under the tenancy remained in occupation, and
• Your ex-wife did not serve any notice to quit

Then this is not an implied surrender situation. You can only have an implied offer to surrender if the property is available for the landlord to repossess.

If one of joint tenants fails to vacate the landlord does not have to accept this and is perfectly entitled to continue to hold the outgoing tenant liable (unless, if the tenancy is a periodic one, the outgoing tenant serves a tenants notice to quit which will end the tenancy for everyone).

So your landlord is entitled (if rather unfairly) to hold your ex-wife still liable if you fail to pay what is owed.

However, if you do not agree with the deductions proposed by the landlord, the correct thing to do is to request that the matter be decided by adjudication. All of the traditional tenancy deposit schemes run free adjudication services if deductions are not agreed (although it may not be free if one of the new ‘alternative’ schemes has been used).

If the dispute goes to adjudication, the landlord will then have to persuade the adjudicators that the deductions she is claiming are allowable – to do this she will need to prove that the things she is claiming for

• Are not down to ‘fair wear and tear’
• Are things you are liable for under the terms of the tenancy agreement, and
• That the compensation she is claiming is reasonable

So this is probably your best course of action.

Your landlord can only bring a claim against your ex-wife if the deductions exceed the deposit sum. If the adjudicators agree with you that the deductions your landlord is demanding are unreasonable and that the deposit is sufficient to cover them all, then no claim can be brought against her.

Note by the way that if your landlord is successful in claiming money from your ex-wife, your ex-wife may be entitled to claim this back from you, if the damage or whatever was actually caused by you and not her.  So you may want to consider paying anyway for anything which is actually down to you.