[2010] EWCA Civ 682; [2010] L & TR 30; [2010] NPC 70; (2010) Times, July 20, 17 June 2010
Morgan J summarized a number of principles applying to surrender by oper-ation of law
In a case in which it was claimed that there had been a surrender of the tenancy of a builder’s yard by operation of law, Morgan J extracted a number of propositions from Woodfall:
•There is no legal distinction between a surrender by operation of law and an implied surrender.
•The term surrender by operation of law is applied to cases where a landlord or a tenant has been a party to some act, the validity of which he is afterwards estopped from disputing, and which would not be valid if the tenancy had continued to exist.
•The principle does not depend on the subjective intentions of the parties but on estoppel.
•In this context, there is no estoppel by mere verbal agreement; there must in addition be some act which is inconsistent with the continuance of the tenancy.
•In point of time, the surrender is treated as having taken place immediately before the act to which the landlord or the tenant is a party.
•The conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended; there must be either a relinquishment of possession and its acceptance by the landlord, or other conduct consistent only with the cesser of the tenancy.
•It has been said that the circumstances must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended.
•An agreement by the landlord and the tenant that the tenancy shall be put an end to, acted on by the tenant’s quitting the premises and the landlord by some unequivocal act taking possession, amounts to a surrender by operation of law; the giving and taking of possession must be unequivocal.
•Where the tenant requests the landlord to let the property to a third party, and the landlord does so, the lease is surrendered at the time of the new letting; the surrender does not take place before the time of the new letting; it is essential that the new letting is effected with the consent of the original tenant; if the original tenant does not consent or know of the new tenancy, there is no surrender; the original tenant’s consent may be inferred from conduct or from long acquiescence in the new arrangement.
•A surrender by operation of law may take place where the landlord, with the original tenant’s consent, accepts a new tenant as his direct tenant; the consent of the landlord and the original tenant is needed.
Morgan J also stated that the requirement that the conduct of the parties must be inconsistent with the continuation of the lease has been described as ‘a high threshold’.