A surrender is an agreement between the landlord and tenant (and possibly also a guarantor) to bring the tenancy to an end. But what happens when a tenant refuses to vacate after agreeing a surrender? Woodstock Legal Services explain.
The agreement (whether signed as a deed or simple contract) sets out the terms of the surrender, such as:
- when the tenant will vacate the property.
- what happens to the deposit.
- whether any money is owed to the landlord.
- whether the tenant and guarantor, if any, are still liable for any breaches committed during the tenancy after the surrender.
The tenancy is considered surrendered once the necessary parties have signed and the property is vacant.
This is a useful tool for landlords and tenants to bring matters to a close on mutually agreed terms. Without the need for possession proceedings.
But what happens when the tenant(s) signs the surrender and then refuses to vacate the property?
The landlord must still comply with their legal obligations. For example, the landlord must continue to carry out necessary repairs. And the tenant’s right to quiet enjoyment should not be breached. As per the tenancy agreement, rent must still be paid. On the date of recovery of the property rent can stop. The landlord cannot simply remove the tenant.
If the landlord wishes to recover possession of the property, the safest and easiest way to evict the tenant and avoid a claim for unlawful eviction is still to serve a notice of possession (i.e., a section 21 or a section 8 notice). They can then commence proceedings once the notice period has expired.
The surrender can be presented to the court to add further weight to the landlords claim, as they can rely on both the notice and the deed of surrender to obtain possession.
In order to avoid potential delays, the landlord should consider serving the relevant notice before or alongside the surrender. Then, if the tenant(s) refuses to vacate the property on the agreed date, the notice period would have been counting down from the date of service. And it may have already expired once it becomes clear the tenant is not going to vacate as agreed.
With a correctly served notice, the landlord can commence proceedings and recover possession sooner.
Failure by a tenant to comply with an agreed surrender is rare, and they remain a great alternative to possession proceedings. Especially, now that the courts are likely to be facing a significant backlog of possession claims. They should however, be carefully and tactically drafted. This is to minimise the risk of default by the tenant. And tie up all issues in dispute between the parties where possible. Tenants should want to vacate the property in order to avoid court proceedings.
Need more assistance with recovering possession of a property or negotiating a surrender with your tenant? Please contact Woodstock who will be happy to help.
By Alex Giblett, Legal Assistant at Woodstock Legal Services
