ending a tenancy early
a tenant can move out during a fixed-term tenancy if their tenancy agreement (including occupation contracts in wales) 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.
if a tenant leaves early without agreeing on this with their landlord, this is known as tenant abandonment. a tenant leaving early can be qualified as ‘abandonment’ if they do so without giving notice to the landlord. in that case, the landlord can send an abandonment notice to the tenant, enabling them to reclaim the property without having to go to court. note that issuing an abandonment notice does not in itself end a tenancy.
depending on how the tenant leaves the agreement (eg if they owe the landlord a large amount of rent), landlords may be able to bring a claim for trespasser proceedings. this may be sufficient for a court to regard the tenancy as surrendered by operation of law. ‘surrender by operation of law’ refers to situations where a tenant's actions (eg abandoning the property) result in the automatic termination of the tenancy agreement, without the landlord having to take any further steps.
there are two types of tenancy surrender - express and implied surrender.
express 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 and 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 a court order.
implied surrender
a surrender will operate as a matter of circumstance where it is implied from the conduct of the parties, for example, if the parties enter into a new tenancy on different terms to the existing tenancy, the existing tenancy is considered surrendered.
the essence of an implied surrender is the tenant consensually giving up possession of the premises to the landlord. 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.
joint landlords and joint tenants
you should speak to your landlord about surrendering your tenancy and come to an agreement with them. where there are joint landlords (ie more than one landlord is named on the tenancy agreement), you should 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 the tenancy 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.
if you are a joint tenant (ie multiple people rent the property together under the same contract, with equal rights and responsibilities under their tenancy agreement), all joint tenants must agree to the surrender.
rent
the tenant must continue to pay the rent until the landlord accepts the surrender (subject to the natural expiry of the tenancy agreement). in other words, if a tenant surrenders the tenancy, they have to pay rent until their landlord accepts their surrender. however, if their tenancy ends before their landlord accepts the tenancy surrender, they do not have to continue paying rent after the end of the tenancy.
fees for surrendering a tenancy
under the tenant fees act 2019, most private landlords and agents are only allowed to charge tenants certain ‘lawful fees’. these lawful fees include a fee for surrendering a tenancy. however, landlords and agents can only charge for:
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the loss incurred by the landlord (eg loss of rent), and/or
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the agent’s reasonable costs related to arranging the termination (eg marketing costs)
for more information, read tenant fees.
