Keywee - Landlord and Tenant Law Research Site » Surrender

No Duty to Mitigate Loss

guildy — Sun, 08 Aug 2010 11:10:13 +0000

Reichman v Beveridge [2007] 1 P & CR 358

Summary

Where the tenant had failed to pay rent due under the lease and had abandoned the demised premises, the landlord was under no duty to mitigate his loss when seeking to recover arrears of rent.

Abstract

The [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']appellant tenant (T) appealed against a decision that his landlords (L) were under no duty to mitigate their loss when seeking to recover arrears of rent. T had failed to pay rent due under a lease and had abandoned the premises. L sued for the arrears, seeking only a money judgment for the sums due. T served a defence alleging that L had failed to mitigate their loss by failing to instruct agents to market the premises, failing to accept the offer of a prospective tenant who wanted to take an assignment or new lease and failing to accept an offer to negotiate payment of a consideration for a surrender of the lease. T submitted that the contractual rules relating to mitigation of loss applied even though L had not terminated the lease for breach of T’s covenants but had merely sued for each instalment of rent as it had fallen due.

Held

Appeal dismissed. T’s argument had failed to take into account the consequences of the premature termination of a tenancy or the limited scope for the intervention of equity. There was a very limited category of cases where, having elected not to accept a repudiation of contract, an innocent party to a contract was prevented from enforcing his contractual right to maintain a contract in force and sue for the contract price, namely cases where damages would be an adequate remedy and where an election to keep the contract alive would be wholly unreasonable, White & Carter (Councils) Ltd v McGregor [1962] A.C. 413 considered. A tenant could not successfully invoke equity in that way, Gator Shipping Corp v Trans-Asiatic Oil SA (The Odenfeld) [1978] 2 Lloyd’s Rep. 357 considered.

In the instant case it was far from clear that L were acting wholly unreasonably in not taking their own steps to find a new tenant, rather than leaving it to T to propose one, or in rejecting a proposal made by T.

Furthermore, if market rent had been lower than that reserved by the lease, damages would not be an adequate remedy for L if they had terminated the lease by way of forfeiture and then re-let at a lower rent because they could not recover damages to compensate for the loss of rent. If, on the other hand, the market rent had been the same or higher, it should have been possible for T to have taken their own steps to find an assignee.

If T had found an assignee or subtenant that the landlords refused to accept on reasonable terms, then T would have had a statutory remedy under the Landlord and Tenant Act 1985. Furthermore, there was no authority to show that a landlord could recover damages from a former tenant in respect of loss of future rent after termination. In those circumstances, either damages were not an adequate remedy for the landlord or the landlord would be acting reasonably in taking the view that he should not terminate the lease because he may well not be able to recover such damages. In principle, if the landlord chose to regard it as up to the tenant to propose an assignee, sub-tenant or substitute tenant, that was not unreasonable, still less wholly unreasonable.

Comment

Although this case relates to a long term lease for commercial premises, there would seem to be no reason why it won’t equally apply to a normal residential tenancy including an assured shorthold tenancy. Also, where a surrender is offered, the landlord has no duty to the tenant to mitigate the tenant’s loss by reletting to the first comer irrespective of other considerations affecting the landlord’s interests. [Boyer v Warbey [1953] 1 Q.B. 234]

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Notice of Surrender

guildy — Tue, 01 Jun 2010 09:18:06 +0000

Introduction

Where a tenant wishes to leave during a fixed term, or simply vacates without notice, this is an offer to surrender. A landlord may accept such a surrender or refuse to accept (see this article for much more detail).

In the case that the landlord is willing to accept the surrender, it is best to have a notice to surrender from the tenants.

A suitable notice to surrender is available here

Notice to surrender by tenant to landlord guidance

Where a tenancy is running periodic, a NOTICE TO QUIT from tenant is normally more suitable than this notice (Guild Form F019, see this group of posts). This notice should only be used on rare occasion and you should contact us before using this notice to clarify the reasons for using this notice.

A few key points to note:

This notice should be used where ALL parties agree that the tenancy is to end, that is to say [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']ALL tenants and the landlord must agree for this notice to have effect. By agreeing with this notice, the landlord will be no longer entitled to claim any further rent after the expiry of this notice. (But if the tenant remains in occupation, damages for use and occupation will be payable by the tenants)

Anything less than ALL tenants signing this notice will render the notice invalid.

This notice is normally used where a notice to quit is not possible for example if a tenant wishes to leave during a fixed term (where the landlord agrees), or if a tenant has already vacated without notice and the landlord is seeking clarification that the tenant has indeed surrendered the tenancy.

If the tenant is wishing to simply give short notice (i.e. less than four weeks) during a periodic tenancy, a notice to quit is equally suitable because a landlord may accept an invalid notice to quit.

The tenant does not have to give any specific length of time with this notice so it could be an agreement to give one days notice or one months notice. Nor, does this notice need expire on any particular date.

If the tenants fail to vacate on the date given in this notice, a court order will still be required to gain possession.

If a landlord asks the tenant to sign this notice on the same date or before the tenancy is granted, it will have no effect [s.5(5) Housing Act 1988].

Completing the notice (in order of form ﬁelds)

Insert name and address of landlord
Insert names of all tenants
Insert tenancy address
Insert the date the tenancy is to be surrendered and the premises given back to landlord
Insert date of the notice
All tenants to sign, each signature must be witnessed
Landlord to sign and must be witnessed
Both landlord and tenant should retain a copy each

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One of joint tenants give notice without others consent

guildy — Mon, 23 Nov 2009 11:22:34 +0000

Short notice or exercising break clause during fixed term

A short notice or a notice exercising a break clause must be given by all joint tenants. [Hounslow .B.C. v. Pilling [1993] 1 W.L.R. 1242.]

Notice to quit to end “on the last day of the tenancy”

Assured shorthold tenancy

If one joint tenant wishes to terminate before, or on the last day of a tenancy by giving a notice to quit, the notice to quit must be given by all tenants and all tenants must vacate before midnight on the last day, otherwise a statutory periodic tenancy will arise “immediately” [s5 Housing Act 1988].

“In the case of joint tenants any action must be on the part of all of them: 1988 Act , s 45(3) . This is contrary to the position at common law: Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478 . “ [Woodfall Landlord and Tenant para 24.033]

Common law Tenancy

Unless there is express provision to the contrary (for which see below under periodic), one of several joint tenants may [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']give notice to quit to end a tenancy on the last day of the term without the concurrence of the others and the tenancy will terminate. [Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478]

Note:

In both cases above, no notice is required by a tenant to vacate on the last day of the term, as long as all tenants vacate before midnight on the last day.

It may be possible for a provision in a tenancy agreement to require “if the tenant intends to vacate on the last day of the term, the tenant must provide at least one months notice…”, however it is not clear whether such a term would be enforceable.

Periodic Tenancy

The common law position of one of several joint tenants giving a valid notice on a periodic tenancy is that one tenant may give notice which has the effect of ending the entire tenancy unless there is a provision in the tenancy agreement requiring all tenants to give the notice. [Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478] (to see if notice is valid, see the section on “is notice by tenant valid?”).

A standard joint and several clause found in most tenancy agreements, explaining that the obligations are liable by all tenants jointly and severally is NOT an express provision that requires all tenants to give a notice to quit [ibid Hammersmith v Monk]. In order for a clause to expressly require all tenants to give a notice to quit and not just one of the tenants, it must expressly refer to the giving of the “notice to quit” by all tenants.

For a local authority (so not applicable to private landlords), it may be the case that to seek possession against a remaining tenant after another has given notice maybe a breach of Article 8 and proportionality [Chesterfield BC v Bailey]

Hammersmith and Fulham London Borough Council Respondent v. Monk [1990] 3 W.L.R. 1144 House of Lords

The defendant and his cohabitee were granted by the council a joint periodic tenancy of a flat, terminable by four weeks’ notice. The cohabitee later left the flat and, upon the council agreeing to rehouse her if she terminated the tenancy, gave the appropriate notice without the defendant’s knowledge or consent. The council thereafter notified the defendant that the tenancy had been terminated and brought proceedings in the county court to recover possession. The judge dismissed the claim on the ground that one joint tenant could not bring a periodic tenancy to an end without the concurrence of the other. The Court of Appeal allowed the council’s appeal and made an order for possession.

On the defendant’s appeal:-

Held, dismissing the appeal, that a contractual periodic tenancy held by two or more joint tenants continued only so long as they all agreed in its continuation; and that, accordingly, in the absence of any term in the tenancy agreement to the contrary, a periodic tenancy was determinable by a notice to quit given by one joint tenant without the concurrence of the other joint tenants and the tenancy of the defendant’s flat had been lawfully determined (post, pp. 483D-E, 490B-C, G-491A, C-E, 492H-493A, F).

What if one tenant has given notice and the other tenant refuses to leave under an assured shorthold statutory periodic tenancy?

The first thing to check is, is the notice valid? If it is not, the landlord does not have to accept the notice and the tenancy will continue. If the notice is invalid but one tenant has vacated, the tenancy will still be an assured shorthold tenancy because (a) the tenancy has not ended because the notice is invalid and (b) only one of joint tenants need occupy the premises as their only or principle home in order for an assured shorthold tenancy to continue [s1(b) Housing Act 1988].

It is possible for a landlord to waiver a defect in a notice where all tenants have given the notice [Elsden v Pick [1980] 1 W.L.R. 898], However a landlord may not accept a short notice given by only one of joint tenants [Hounslow .B.C. v. Pilling [1993] 1 W.L.R. 1242.]

Assuming the notice is valid, then, the tenancy will be at an end. Assuming the person that gave the notice has vacated, his rent liability will cease and the tenancy will be at an end.

At common law he is under a duty to yield up the premises with vacant possession at the end of the term but the intervention of statutory security of tenure has reduced this obligation to one simply to do all he can to obtain vacant possession for the landlord. [ Reynolds v Bannerman [1922] 1 K.B. 719 and Watson v Saunders-Roe [1947] K.B. 437 .] The tenant who has vacated may be liable for the payment of rent or mesne profits up to a point, especially if he has made no reasonable attempt to provide vacant possession.

Because the tenancy is at an end, the person who remains in the property has no tenancy and therefore presumably no protection under the Housing Act (a court order is still required though because of section 3 Protection from Eviction Act 1977).

There are two issues that could arise when suggesting that the person(s) remaining has no protection.

Firstly, Section 45(3) Housing Act 1988 states:

(3) “Where two or more persons jointly constitute either the landlord or the tenant in relation to a tenancy, then, except where this Part of this Act otherwise provides, any reference to the landlord or to the tenant
is a reference to all the persons who jointly constitute the landlord or the tenant, as the case may require.”

This could imply that a notice to quit given under an assured shorthold tenancy must be given by all tenants because a “reference to a tenant is a reference to all person who jointly constitute the the tenant”. However, the reference would seem to be any reference within the Housing Act 1988. There is no provision within the Housing Act for a tenant to give notice (nor is there any restriction as that would be absurd!). The requirement of providing notice is governed by s5 Protection from Eviction Act 1977. It would therefore seem that this section only means any reference in the Housing Act 1988 and so should not affect the common-law position.

Secondly, section 1 Housing Act 1988 states:

1. — (1) A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured [shorthold] tenancy if and so long as—

(a) …

(b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home

This implies that as long as one of the joint tenants occupies the dwelling as their home, the tenancy is an assured shorthold tenancy. However, again this is only likely to apply whilst the tenancy is continuing. Once the tenancy has been ended by a notice to quit, then the property is no longer let as a separate dwelling.

It would be absurd if section 1 had the effect of continuing the tenancy because should one of the joint tenants wish to leave and provide valid notice, the tenancy could never end until the remaining tenant consented and vacated themselves thus locking all parties into a periodic tenancy indefinitely.

A landlord should therefore decide quickly what action to take. There are two options:

1. Accept the remaining person as a tenant. In which case, the landlord should grant a new tenancy agreement to the person(s) remaining in occupation.

2. If the landlord is not satisfied with the remaining person(s) then possession should be sought as was done in the Hammersmith case above. It will be possible to seek possession on the basis of the notice to quit provided by the one tenant and the ground for possession is essentially that the tenancy has ended by the service of the notice to quit.

Claiming Possession after VALID notice to quit but tenant fails to vacate

Please see this article

Author notes

notes to author – add Case law accepting rent after notice to quit does not normally create new tenancy (but might in this case)

See also our guidance note on tenants notice and surrender[/amember_protect]

Is notice from tenant valid?

guildy — Mon, 23 Nov 2009 11:18:35 +0000

Just like a landlord when serving any notice must get the form correct and ensure all the dates are correct, so must a tenant. It must be said though that for a tenant, there are fewer requirements on the contents of a notice but nevertheless, the date of a tenants notice must be almost as precise as that of a landlords.

Section [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']5 Protection from Eviction Act 1977 is the starting point which reads:

s 5 Validity of notices to quit.

(1) [Subject to subsection (1B) below] no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) as a dwelling shall be valid unless–
(a) it is in writing and contains such information as may be prescribed, and
(b) it is given not less than 4 weeks before the date on which it is to take effect.

This section does not apply to a licence, it only applies to a tenancy which was let as a dwelling for example an assured [shorthold] tenancy or a common law tenancy.

Calculation of four weeks

The requirement that the notice is given not less than four weeks before the date on which it is to take effect means inclusive of the date of service and exclusive of the day of expiry; so a notice given on Friday, 4th March to expire on Friday, 1st April was good. [Schnabel v. Allard [1967] 1 Q.B. 627; overruling Thompson v. Stimpson [1961] Q.B. [1961] Q.B. 195.]

Length of Notice

Where the period of the tenancy is less than yearly, the rule at common law is that the length of notice must correspond to the period of the tenancy. [See Doe d. Peacock v. Raffan (1806) 6 Esp. 4.] Thus a weekly tenancy may be determined by a week’s notice (but see below), a monthly tenancy by a month’s notice and a quarterly tenancy by a quarter’s notice.

A yearly tenancy may generally be determined by half a year’s notice expiring at the end of the first or any subsequent year of the term [Doe d. Clarke v. Smaridge (1845) 7 Q.B. 957; Doe d. Plumer v. Mainby (1847) 10 Q.B. 473] However, the parties may expressly stipulate for a longer or shorter notice to quit than that usually required by law [See e.g. Rogers v. Kingston-upon-Hull Dock Co. (1864) 34 L.J.Ch. 165; Soames v. Nicholson [1902] 1 K.B. 157.]

The common law rule may be excluded by express agreement, local custom or statutory provision. [The most important of which is the requirement of 4 weeks' notice by the Protection from Eviction Act 1977. See above]

The parties to a demise may expressly stipulate that in a certain event the tenant may quit without any notice. [Bethell v. Blencowe (1841) 3 Man. & G. 119.]

As in the case of a yearly tenancy, the parties may, by agreement, make the tenancy terminable by the appropriate notice at any time; but the words used to bring about this effect must be plain. [H. & G. Simonds v. Heywood, ante; contrasting Mayo v. Joyce, ante.] So a tenancy expressed to be “a monthly one terminable at the will of the landlord or of the tenant by one month’s notice” was held to be determinable by one month’s notice at any time, “at the will of” being construed to mean “at any time.” [Capill v. Norman Andrews [1955] N.Z.L.R. 808.]

Must expire at the end of a period of the tenancy

It was at one time said that a notice to quit should expire on the last day of some year of the tenancy, and not on the same day on which the tenancy commenced.

But the modern law is that since a yearly tenancy in strictness expires at midnight of the day before the anniversary of its commencement, the notice may be made to expire either on the anniversary of commencement or on the day before the anniversary of commencement, and either is good. [Yeandle v. Reigate B.C. [1996] 1 E.G.L.R. 20, following Sidebotham v. Holland [1895] 1 Q.B. 378.] A similar rule applies to weekly or monthly tenancies. [Crate v. Miller [1947] 2 All E.R. 45.]

[para 17.255 Woodfall Landlord & Tenant]

Rent still due where tenant fails to give proper notice

Boyer v Warbey (No.1) [1953] 1 Q.B. 234

The tenancy of a flat was assigned with the consent of the landlords to the defendant who, on the expiration of the lease, held as a statutory tenant. On August 30, 1951, the defendant left the flat without giving the landlords the three months’ notice required by s. 15(1) of the Act of 1920; he subsequently sent the keys to the landlords, who refused to accept a surrender of the tenancy. The landlords claimed that he was liable to pay rent until November 21, 1951, when the flat was re-let.

Held, he was liable to pay the rent (either as such or as damages for breach of statutory duty) until November 21, when the flat was re-let. Smith v Baker (Charles) & Sons [1891] A.C. 325 considered and Elvins v Slaney [1948] W.N. 129 considered.

Notice served during fixed term

“A notice to quit is a certain reasonable notice required by law, custom, special agreement or statute, to enable either the landlord or tenant, … without the consent of the other, to determine a tenancy from year to year or other periodic tenancy. By its nature a tenancy for a term certain cannot be determined by notice to quit…” [para 17.196 Woodfall Landlord and Tenant]

“The tenant cannot terminate before the end of a fixed term…” [para 3.020 Residential Possession Proceedings 7th edition]

Invalid Notice by tenant

The mere fact that an invalid notice to quit is given and accepted does not, without more, amount to a surrender by operation of law. [Doe d. Huddleston v Johnston (1825) M'Clel. & Y. 141].

But if the parties act on an invalid notice to quit, so that possession is given and accepted, their action will amount to a surrender of the tenancy, [Gray v Owen [1910] 1 K.B. 622.] or a waiver of any defect in the notice. [Elsden v Pick [1980] 1 W.L.R. 898.]

The minimum period of notice prescribed by s.5 of the Protection from Eviction Act 1977 can be waived by the parties. [Hackney L.B.C. v. Snowden [2001] L.& T.R. 60

Surrender by operation of law

An agreement by the landlord and the tenant that the term shall be put an end to, acted upon by the tenant’s quitting 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.] But the giving and acceptance of possession must be unequivocal.

So there was no surrender where:

(a) the landlord accepted the keys “without prejudice” [Re Panther Lead Co. [1896] Ch. 978. For the giving up of keys generally, see para. 17.022, below.] ;

(b) the landlord accepted the keys by mistake [Proudreed v Microgen [1996] 1 E.G.L.R. 89.] ;

(c) the landlord attempted unsuccessfully to relet the premises [Oastler v Henderson (1877) 2 Q.B.D. 575. See also Redpath v Roberts (1800) 3 Esp. 225.] ;

(d) the landlord evicted squatters after abandonment by the tenant but did not intend to accept a surrender [McDougalls v BSE Trading [1997] 2 E.G.L.R. 65.] ;

(e) the landlord changed the locks of the premises in order to secure them against intruders, while maintaining a claim against the tenant for rent [Relvok Properties v Dixon (1973) 25 P. & C.R. 1.] ;

(f) the landlord carried out necessary repairs [Bessell v Landsberg (1845) 7 Q.B. 638.] and attempted to let the premises, although when the landlord did relet, the tenant’s liability for rent ceased as from the start of the new letting [Smith v Blackstone (1885) 1 T.L.R. 267.] ;

(g) the landlord put a caretaker into the property in order to prevent depredations. [Bird v Defonvielle (1846) 2 Car. & K. 415.]

(h) the tenant abandoned part of the premises. [Chamberlain v Scalley (1994) 26 H.L.R. 26.]

(i) the landlord accepted rent from a third party occupier other than the tenant with no intention of effecting a surrender. [Mattey Securities v Ervin [1998] 2 E.G.L.R. 66; Bhogal v Cheema [1991] L. & T.R. 59.]

(j) the tenant vacated the premises and told the landlord that it could take her to court. [Bellcourt Estates v Adesina [2005] 2 E.G.L.R. 33.]

However, the landlord’s conduct was sufficient to amount to the acceptance of a surrender where:

(a) he accepted possession unreservedly [Grimman v Legge (1828) 8 B. & C. 324.] ;

(b) the tenant vacated at the request of the landlord who afterwards demolished the property [Furnivall v Grove (1860) 8 C.B.N.S. 496.] ;

(d) the landlord accepted rent from sub-tenants who had been directed by the tenant to attorn to the landlord and pay their rent to him [Gray v Balls (1861) 5 L.T. 395.] ;

(e) the tenant left giving notice of intention to surrender and the landlord acquiesced without demur for a considerable period. [Brent L.B.C. v Sharma (1993) 25 H.L.R. 257.]

A collection of facts which, though equivocal if looked at singly, may collectively point unequivocally to an acceptance of possession. [Reeve v Bird (1834) 1 C.M. & R. 31.]

The giving and acceptance of possession may be symbolic, e.g. by the giving and acceptance of keys. This is considered in the next paragraph.

[para 17.021]

Acceptance of key

The acceptance of the key by the landlord is not necessarily evidence of a surrender; it depends why the key was accepted. If it is accepted merely for the purpose of attempting to relet in the interests of the tenant, [Oastler v. Henderson (1877) 2 Q.B.D. 575.] or to secure the premises against intruders, [Relvok Properties v Dixon (1973) 25 P. & C.R. 1.] or to carry out repairs, [Boynton-Wood v Trueman (1961) 177 E.G. 191.] or by mistake [Proudreed v Microgen [1996] 1 E.G.L.R. 89.] there is no surrender.

But if the key is accepted as part of an agreement that the tenant shall give up possession and that the rent shall cease, the acceptance of the key marks the moment of surrender. [Whitehead v Clifford (1814) 5 Taunt. 518; Furnivall v Grove (1860) 8 C.B.N.S. 496.] Where the tenant left the key at the landlord’s office, and the landlord at first refused to accept it, there was nevertheless a surrender when the landlord subsequently put up a letting board, used the key to show the property to prospective tenants and painted out the tenant’s name from the front of the property. [Phene v Popplewell (1862) 12 C.B.N.S. 334.]

The key must be given to a person authorised to accept it. So where the key was given to the clerk of the landlord’s trustee in bankruptcy, but no further communication took place, there was no surrender. [Cannan v Hartley (1850) 9 C.B. 634.] However, one of two joint landlords may have authority to accept a surrender as agent for both of them. [Dodd v Acklom (1843) 6 Man. & G. 672.]

Where a surrender is offered, the landlord has no duty to the tenant to mitigate the tenant’s loss by reletting to the first comer irrespective of other considerations affecting the landlord’s interests. [Boyer v Warbey [1953] 1 Q.B. 234, per Romer L.J.]

[para 17.022]

Rent in lieu of notice [Laine v Cadwallader (2001) 33 H.L.R. 36]

Abstract: In January 1998 L granted an assured shorthold tenancy to C for six months at a rent of GBP 390 per calendar month, payable in advance at two monthly intervals. The tenancy agreement contained a clause requiring C to give one calendar month’s notice of termination. The tenancy continued after the end of the six months, and in September 1998 C left the property, depositing the keys through L’s letterbox. L’s applications to the court to recover rent arrears and funds to repair damage caused by C were successful, although her associated claim for four weeks’ rent in lieu of notice was refused. L appealed.

Summary: Held, allowing the appeal, that at the end of the term certain the tenancy took effect as a periodic assured tenancy under the Housing Act 198[8] s. 5 , the periods being calendar months. Although the notice clause in the tenancy agreement no longer applied after the expiration of the term certain, C was required by the Protection from Eviction Act 1977 s. 5(1) to give at least four weeks notice to quit. The act of putting the keys through L’s letterbox amounted to an offer by C to terminate the tenancy, which L by implication accepted as four weeks’ notice commencing on that day. L was therefore entitled to recover rent equivalent to that four week notice period.

Effect of a sufficient notice to quit

It is implicit in the nature of a periodic tenancy that it may, apart from any special terms agreed, be brought to an end by the unilateral act of either party. Thus, once a valid notice to quit has been served, the tenancy will automatically come to an end on the expiry of the notice, even though the party giving it has purported to waive or withdraw it. The parties may, by a new contract, create a new tenancy which is what is sometimes meant by “waiving” a notice to quit, but the old tenancy no longer exists. Unless a fresh tenancy is subsequently created, the landlord cannot distrain for subsequent rent, even though the tenant continues in possession for a year or more after the expiry of the notice. [Alford v Vickery (1842) Car. & M. 280, per Coleridge J.] The remedy in such case is by action for use and occupation, or for double value or double rent.

A landlord’s notice to quit will destroy along with the head tenancy all sub-tenancies derived out of it, and a tenant’s notice to quit to his landlord will have the same effect. It should be noted under the Housing Act 1988 any sub-tenancies lawfully granted may become the tenants of the head landlord depending on the circumstances.

Where a notice to quit is given after a “restricted contract” of tenancy has been referred to a Rent Tribunal, its operation is postponed until after the expiry of the period laid down by the statute or given by the tribunal; the effect of the statute is not to make the notice a nullity.
Where a tenant has served a statutory counter-notice following notice to quit an agricultural holding it does not have effect unless the Agricultural Land Tribunal consents to its operation. [s.26(1) of the Agricultural Holdings Act 1986.]

[para 17.200 Woodfall Landlord & Tenant][/amember_protect]

Surrender

guildy — Wed, 23 Sep 2009 14:26:41 +0000

Also see “is notice by tenant valid“

Surrender by operation of law

So there was no surrender where:

(a) the landlord accepted the keys “without prejudice” [Re Panther Lead Co. [1896] Ch. 978.] ;

(b) the landlord accepted the keys by mistake [Proudreed v Microgen [1996] 1 E.G.L.R. 89.] ;

(c) the landlord attempted unsuccessfully to relet [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']the premises [Oastler v Henderson (1877) 2 Q.B.D. 575. See also Redpath v Roberts (1800) 3 Esp. 225.] ;