Surrendering a tenancy

Surrender occurs when both parties to a tenancy, the landlord and tenant, voluntarily agree to bring the tenancy to an end. Once surrender has taken place, all obligations and rights under a tenancy also come to an end.

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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 (i.e. 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.

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

Express surrender

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

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.

Implied surrender

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, i.e. 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.

Rent

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

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