Surrendering a tenancy

A tenant can move out during a fixed term tenancy if the tenancy agreement contains a break clause, stating that either party can end the tenancy early (ie before the term has expired). If there is no break clause in the agreement, then you can only end the tenancy if both parties agree to it. This is called surrendering the tenancy.

Where there are joint landlords (ie more than one landlord is named on the tenancy agreement), you must generally agree with all landlords to end the tenancy early. However, where one joint landlord acts as an agent for the other(s), they can accept a surrender on behalf of all the landlords. If joint landlords have appointed an agent to act for them, and you have been instructed to deal with this agent, you can deal with the agent to end your tenancy early.

There are two types of surrender - express surrender and implied surrender.

Express surrender involves using a written agreement (or declaration) to surrender the tenancy. Express surrender is made by deed. Since mutual consent is required, both the landlord and tenant will have to sign the agreement. Both signatures must be witnessed. Once the agreement has been signed, both parties will be released from any future obligations to each other.

Note that the written agreement must make it clear that it is a deed and set out that the tenancy will come to an end with immediate effect.

In the event that the tenant does not give up possession of the property to the landlord, despite surrendering the tenancy, the landlord can still recover possession of the property through court order.

A surrender will operate as a matter of circumstance where it is implied from the conduct of the parties, eg where the parties enter into a new tenancy on different terms to the existing tenancy, the existing tenancy is considered surrendered.

The essence of implied surrender is the consensual giving up of possession of the premises to the landlord by the tenant. It is important that the landlord does some act in accepting the surrender, such as accepting the keys to the property once the tenant returns them. The landlord’s belief that the tenant has surrendered the property must therefore be genuine, ie there is evidence that the tenant has removed all signs of their occupation, including furniture and belongings. Unless the evidence of surrender by the tenant is clear, the landlord runs the risk of unlawfully evicting the tenant.

The tenant must continue to pay the rent until the landlord accepts the surrender (subject to the natural expiry of the tenancy agreement).