Want to avoid implied surrender

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    Want to avoid implied surrender

    I have a tenant who's periodic tenancy ends next month but they wanted to leave early so are claiming their tenancy ends this month and want to return the keys. I don't want it to look like I'm accepting the surrender and I've sent them various emails stating that my position is the tenancy doesn't end until next month and that I will try to re-let the property as soon as possible but I'm not ending the tenancy a whole month early like they want. They only gave me a few weeks notice which I don't think is fair.

    They aren't the most informed legally and I tried to explain that i can't let the property to two parties simultaneously so they would have to sign a deed of surrender when a new tenant is found. They didn't agree with my proposal so I suggested they could give the keys back when they think the tenancy ends, which is an offer of surrender, and when I find a new tenant I can accept the surrender and re-let the property. This would have all been fine but the were then obstructive over viewings and now they have left say I can go in for viewings whenever I like.

    They want to give the keys back, which is an offer of surrender, and I've told them I wont accept the surrender until a new tenant is found or the tenancy ends on the correct date etc.

    If I email them saying they can return the keys but I want to make it clear that I'm not accepting the tenancy ends is this enough to avoid a claim of implied surrender?

    Any thoughts please?

    #2
    So long as you make it clear that you are not agreeing to the end of the tenancy, and are only accepting the keys so as to keep the property secure, you're fine on that front. Neither does the mere marketing of the property implied acceptance.

    If however you do successfully re-let, since you can't simultaneously let to two different parties, the earlier tenancy would be considered ended by implied surrender.

    Are you sure the length of notice you are requiring from your tenant is correct / legal though?
    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

    I do not answer questions through private messages which should be posted publicly on the forum.

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      #3
      Does your tenancy state how much notice is to be given? And exactly what date did they give you notice on and what date would they be leaving?

      If they have already left then I would provide them with a copy of their contract with a covering letter advising that the notice period has not yet expired and they are therefore liable for rent for the whole period.

      If they haven't yet returned the keys the danger is they could "move back in" and make things very difficult if you already have a new tenant lined up.

      If they are claiming housing benefit and already have a new property there are certain situations where they can claim on both properties so that may help you obtain the rent due?

      What was their problem in signing a deed of surrender if and when u found a new tenant? That to me seems the sensible solution to you both.

      It sounds like they think they can up and leave without any further liability.

      I would agree with Ktc if the property is now empty then accept their keys to ensure the property is secure but state in writing that the rent payment is still due.

      Comment


        #4
        Please complete & paste http://www.landlordzone.co.uk/forums...ll-new-posters

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          #5
          Thanks for the replies.

          I didn't post too much info regarding the details of the tenancy because it is a public forum but I'm happy with the legal position regarding notice etc and really wanted people thoughts on the idea of implied surrender etc.

          I believe the main sticking point is tenant found a new place they wanted to move to and notice to me was an afterthought. They then claimed they had taken legal advice and they were certain their tenancy ended when was convenient for them and hoped they could bluff me. They cldnt then agree to sign a deed of surrender as the bluff was the tenancy would have already ended etc. That's why I suggested the return of keys when they leave as an offer of surrender which I would accept when a new tenant can be found, which hopefully would be before the technical end of the tenancy next month.

          It's better for both parties as they will get some deposit back and I will get a new tenant. Unfortunately they wanted to stick to their original bluff and then were difficult over viewings. It's very difficult dealing with a tenant who won't accept the facts of the matter and stick to their story regardless. In the end we just agreed to disagree over the correct end date which will be determined by the DPS if they make a claim

          Comment


            #6
            I have a tenant who's periodic tenancy ends next month but they wanted to leave early so are claiming their tenancy ends this month

            Is this a monthly (or other periodic) tenancy or a fixed term tenancy? I ask because a periodic tenancy has no end date until a notice is served. Or is it a dispute about when a fixed term tenancy ends? Either way it seems that something is likely to be confusing if there is a difference of a month as to when the tenancy ends. Perhaps you would care to clarify the position?

            Assuming the tenant is wrong, whether there is an implied surrender depends as much on what is done as on what is said. What is risky is being equivocal. Accepting the keys and saying you will accept a surrender when you find a tenant is equivocal. If you accept the keys and then start showing tenants over the property there is a strong argument that you have taken back control of the property and accordingly accepted a surrender. It is best to avoid a fudge. Either (a) insist that the tenancy ends when you say it does and accept the keys on the basis that there is no surrender and do absolutely nothing and tell the tenant you will be doing nothing despite what you may have said earlier, or (b) comes to terms and agree a surrender.

            Comment


              #7
              Originally posted by Lawcruncher View Post
              If you accept the keys and then start showing tenants over the property there is a strong argument that you have taken back control of the property and accordingly accepted a surrender.
              I seem to recall a case law on this exact scenario: There isn't a surrender if the landlord is clear and access is gained taking into account that the tenancy continues.

              Comment


                #8
                Originally posted by jjlandlord View Post
                I seem to recall a case law on this exact scenario: There isn't a surrender if the landlord is clear and access is gained taking into account that the tenancy continues.
                The snag is that each case is likely to turn on its particular facts. It is not difficult to do something which, despite what may have been said, is taken as an indication that the landlord has taken back effective control of the property or is inconsistent with the tenancy continuing, for example changing the locks or carrying out repairs. If the tenancy is to continue the tenant has to have free access.

                Comment


                  #9
                  Tenant gave notice mid way through a periodic tenancy period and said they want to leave in 3 weeks but will pay for the whole month if needed.

                  If you take the notice period to be one full periodic tenancy period then the tenancy ends on the last day of the next period which in total was about 7 weeks away. This is the common law position for notice and was reflected in the AST.

                  The dispute arose over whether they were able to give one months notice or whether it had to be one month's notice that ended on the last day of the periodic tenancy period. They will not hear anything that doesn't support them leaving when they want to and insist the tenancy has ended and want to return the keys.

                  I offered to re-let the property as soon as possible and so release them from their liability early. They state that this is not necessary and it's up to me if I re-let the property or not. I don't think advertising the property and showing prospective tenants around is inconsistent behaviour on my part for the tenancy to be continuing and indeed I do this all the time. But I would like to avoid the accusation I've accepted surrender.

                  I have made it very clear that I don't consider return of the keys to constitute my acceptance that the tenancy has ended. and told them I would take them back to expedite viewings and re-letting. If I can re-let the property next week then it helps both parties etc but they refuse to accept this. In a way it's saving them from their own stupidity to re-let the property quickly. If it sits there for another month they will lose all their deposit and it's obviously better for me to find another tenant before Christmas.

                  Other than viewings the property will sit empty so I wont be doing anything else to indicate I've taken possession of the property. It's in the contract that viewings should be allowed in the last month.

                  Comment


                    #10
                    If the tenancy agreement was clear on the notice, how could the tenant argue otherwise?
                    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                    Comment


                      #11
                      Originally posted by jpkeates View Post
                      If the tenancy agreement was clear on the notice, how could the tenant argue otherwise?
                      That's an excellent question

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                        #12
                        They say they have been advised and it's possible the agent who let them their new place told them this in order to get the deal through. I asked them to take proper advice but they said they had.

                        Comment


                          #13
                          jackboy, When did T provide NTQ, how and what did it say? When did that Rental Period commence?

                          They should have been advised they can leave at any point after serving valid BUT will remain liable for property & rent etc until last day of next full rental period. Valid NTQ is min 1 full 1 rental period and must expire at end at end of a Rental Period.

                          PS we don't request Tenancy info for no reason and the Sticky FAQ is to provide rel basic info for Advisors.

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