Recovering possession after unsuccessfully surrendering the tenancy
Alex Giblett • May 28, 2020
What happens if the tenant refuses to vacate the property after agreeing a surrender?
The agreement (whether signed as a deed or simple contract) sets out the terms of the surrender, such as: when the tenant will vacate the property; what happens to the deposit; whether any money is owed to the landlord; and whether the tenant and guarantor, if any, are still liable for any breaches committed during the tenancy after the surrender.
Once all the necessary parties have signed the surrender and the tenant has vacated the property, the tenancy will be surrendered.
This is a useful tool for landlords and tenants to bring matters to a close on mutually agreed terms without the need for possession proceedings.
But, what happens when the tenant(s) signs the surrender and then refuses to vacate the property?
The landlord must still comply with their obligations as a landlord. For example, the landlord must continue to carry out necessary repairs and ensure that the tenant's right to quiet enjoyment is not breached. The tenant is also still obliged to continue to pay rent due until possession of the property has been recovered, as per the terms of the tenancy agreement and the Landlord cannot simply remove the tenant.
If the landlord wishes to recover possession of the property, the safest and easiest way to evict the tenant and to avoid a claim for unlawful eviction is still to serve a notice of possession (i.e. a section 21 or a section 8 notice) on the tenant and commence proceedings once the notice period has expired.
The surrender can be presented to the court to add further weight to the landlords claim, as they can rely on both the notice and the deed of surrender to obtain possession.
In order to avoid potential delays, the landlord should consider serving the relevant notice before or alongside the surrender. Then, if the tenant(s) refuses to vacate the property on the agreed date, the notice period would have been counting down from the date of service and may have already expired once it becomes clear the tenant is not going to vacate as agreed.
Provided the relevant notice is served correctly, this allows the landlords to commence proceedings and recover possession of their property sooner.
Failure by a tenant to comply with an agreed surrender is rare, and they remain a great alternative to possession proceedings, especially now that the courts are likely to be facing a significant backlog of possession claims. They should however be carefully and tactically drafted to minimise the risk of default by the tenant, and tie up all issues in dispute between the parties where possible. Tenants should be motivated to vacate the property and avoid proceedings being issued against them.
For more assistance with recovering possession of a property or negotiating a surrender with your tenant then please contact us and we will be happy to help.
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