We have recently received a number of helpline enquiries about tenancy surrenders and the formalities that should be adopted by parties negotiating them.
A surrender is a mutual agreement between a landlord and tenant to end a tenancy prior to its contractual end date. A landlord is not obliged to agree to a surrender but in some cases, it might be in their best interests to do so especially if for example, the tenant can no longer afford the rent. However, whatever the reason is, it is important to ensure that any surrender is documented in the form of a Deed of Surrender.
A Deed of Surrender is a formal document that is signed by the landlord and tenant in the presence of an adult independent witness. The witness must also sign the deed and parties can agree to use just one witness if they prefer. Some parties may wish to sign the Deed electronically and while some judges may accept this we cannot guarantee that all will at this current time. Accordingly, where possible parties should sign the Deed in the usual way using a pen.
It is important from the outset to ensure that the Deed reflects the complete and total agreement between the parties in respect of the surrender. That is for example if there is an agreement that:
– the landlord can retain the deposit then the Deed should state this;
– the tenant must permit an agent to conduct viewings 4 weeks prior to the surrender, again the Deed should reflect this;
– the tenant will pay any agent’s re-letting costs, the Deed should state this
– the tenant will professionally clean the property, the Deed should state this.
Put simply, whatever the parties agree, no matter how minor it seems, should be specifically reflected in the Deed. It is usually when something has been omitted that a dispute arises about whether an agreement was reached or not in respect of that very something. It is therefore important to ensure that Deeds are drafted with care and attention.
Once the Deed has been signed, if the date for surrender is sometime in the future then the tenancy continues until that surrender date. This means that all the usual obligations continue such as exclusive possession and seeking permission prior to entering the rented property.
We cannot stress how important it is that any surrender is documented formally by way of Deed. Most of the enquiries we receive on the helpline have usually arisen because either a surrender was not formally documented, or something was omitted from the document leaving the parties in dispute over what was and was not agreed.