A tenant who wishes to give up possession of a property during the fixed term of a lease can negotiate a surrender with their landlord and effect it by:
- deed; or
- conduct, ie delivery of the keys by the tenant and acceptance of them by the landlord.
Forfeiture (the act of forfeiting a lease) allows a landlord to end a fixed-term lease on account of a breach of the lease by the tenant. The landlord may only terminate in this way if:
- the lease contains a forfeiture clause; and
- the forfeiture clause allows the landlord to forfeit the lease in respect of the breach.
The forfeiture procedure will depend on the nature of the tenant’s breach. If the landlord seeks to forfeit the lease for the tenant’s non-payment of rent, there is generally no need to serve notice on the tenant. For breaches other than non-payment of rent, the landlord will have to serve a section 146 notice.
In order to effect the forfeiture, the landlord may physically re-enter the property and bring the lease to an end, however, this can only be done if the tenant has clearly vacated the premises. This process is called 'peaceable re-entry'. If the property is still occupied by the tenant, the landlord may bring possession proceedings against the tenant based on a valid forfeiture.
In Scotland, there is a similar process to forfeiture called irritancy. This process allows the landlord to terminate the lease after a breach of the lease by the tenant. The landlord must inform the tenant about the breach in writing and give them reasonable time to remedy the breach. In cases of rent arrears, this is a minimum of 14 days. If no remedy is made within the period, the landlord can issue the tenant with a written notice to terminate.
A break clause allows a tenant (and sometimes the landlord) to end a lease before it ends. There are certain requirements that must be followed to ensure the break is valid, eg the tenant must serve upon the landlord a break notice.