Deed of Surrender – Landlord and Tenant Q&A

Reply to the comment left by "Mark Alexander" at "22/02/2014 - 20:48":

Hi Mark,

Well if they have signed the Deed and don't go what mechanism will you use to get them out? The N5B asks for possession and a copy of the Notice. Which will be under Section 8 or Section 21. It mentions nothing about Deeds of Surrender.

The Old Bill will not treat them as squatters etc. It would be put in the "too difficult to deal with tray" as a "civil dispute"

So how will they be evicted if they will not go. Unless I am missing something?

Reply to the comment left by "Gary Nock" at "22/02/2014 - 21:54":

And knowing County Court Judges they will interpret things to the advantage of the tenant. So if you have served a Deed of Surrender and it cancels out the AST then how do you serve a notice to end it. The judge may put the landlord in that position. And if you have gone to Court without a Section 8 or 21 then he will kick it out anyway. So a Deed of Surrender might cause more problems than it solves. I wonder what Tessa's take would be on this, or even Paul Shampalina's.

Trespassing?

I will ask Paul Shamplina and Tessa Shepperson to comment on Monday.
.

From the postings so far, it appears that all I have is a signed document expressing an intention by the occupant to end his occupancy, and as it is not signed and witnessed as a Deed, it is basically not worth the paper it is written on if the resident then changes his mind.

At least in my particular case if it is not a Deed then the issue of whether it has or has not ended the occupancy agreement is answered: it has not ended the occupancy agreement. Thus, if I now want this person to move out then I have to follow the normal route of serving a s21, s8, or NTQ.

This posting does seem to have raised a number of uncertainties about the use of Deeds of Surrender, and the legal implications if these are challenged as either invalid in themselves, or if they end an AST, and if so what notices subsequently need to be issued to get the person out of the property. It does beg the question of whether such a document is useful at all.

The comment about "double rent" is something I've not come across before, so I will be researching this in more detail, as it could certainly be useful.

Reply to the comment left by "Robert Mellors" at "22/02/2014 - 22:24":

Hi Robert

Take a look at this article about Mesne profits >>> http://www.property118.com/mesne-profit-can-it-protect-a-hmo-landlord/61664/
.

My word this is one of the most amazing threads I have ever seen on P118. And you think I'm the one lacking something because I've never heard of a Deed of Surrender?

All we have here over 6 pages is reference to a document precious few others have heard of, and even less have used.

Can I bring us all back to reality here and again ask why on earth would you bother, when and why would you use it and above all why on earth would any tenant ever sign one?

Can someone who has ever used one of these please explain how and above all, why, the tenant signed it.

One other point - no-one has as yet confirmed for certain what the procedure is to 'enforce' this document that few have ever seen and none has ever used but just in case we ever do might be useful to know?

But I ask again - why bother what on earth does this Deed of Surrender achieve?

Reply to the comment left by "Mark Alexander" at "22/02/2014 - 23:05":

Hi Mark

I've already responded to the Mesne Profits posting. I'm not sure how it applies to the case on this posting as it is about amounts that can be claimed after a court has ended a tenancy.
Sorry, but I can't see how it answers the question as to ending a person's occupancy if they change their mind after signing a tenancy surrender form, apart from if it was a Deed and did in fact end the tenancy and they were then treated as a trespasser such that any amount due or paid after that date would be mesne profits not rent.

If a Deed of Surrender is used, but it ends the AST, but the tenant remains in occupation, it appears that any sum they pay after that date could be treated as mesne profits, but as Industry Observer has pointed out, nobody has yet clarified for certain how such a document could be enforced in circumstances where the tenant does not actually move out.

It does seem potentially useful in circumstances where the tenant does actually physically move out, as it is written confirmation of the ending of the tenancy.
I guess it would also add to a landlord's defence, if a tenant subsequently claimed that the landlord unlawfully removed/disposed of possessions left in the property.

I also think that a tenant who signs a Surrender is more likely to mentally accept that as the end date of their occupancy. Industry Observer asks if anyone has actually used one, and why a tenant would sign it, - I have used one, and the tenant signed it so as to draw a line under his rental liabilities, i.e. he had already moved out (and I wanted him out), but he had left rubbish in the property, so by signing the surrender form he felt that this was drawing a line under his potential liabilities such that only matters arising prior to that date would be attributable to him. In this instance the surrender document was also useful as evidence to the police and the utility companies to prove an actual tenancy end date. Thus, it can be a very useful document (so long as the tenant does not change his mind and remain in the property).

You can't go in and change the locks. You can only do that in the circumstances set out in s3A of the Protection from Eviction Act 1977 http://www.legislation.gov.uk/ukpga/1977/43/section/3A

You may be able to base a possession order on the grounds that the tenancy has ended and the tenant has failed to move out, as you do after service of a Notice to Quit by tenants (and also by landlords on unregulated tenancies). It would depend I suppose on the circumstances of the case and what the deed actually said.

Although it would be better to get the tenant to serve a Notice to Quit anyway rather than sign a deed of surrender, as then you may also be able to take advantage of the double rent provision in section 18 of the Distress for Rent Act 1737, which I talk about here http://www.landlordlawblog.co.uk/2009/12/01/ancient-law-may-help-landlords/

But you can't use the fact that they have signed this document as a justification for non compliance with the Protection from Eviction Act.

Reply to the comment left by "Tessa Shepperson" at "23/02/2014 - 08:23":

Thank you for commenting Tessa and also for acknowledging the legal standing of a Deed of Surrender. Do you have a template for sale on your website?
.

Exactly Tessa

As I said this thread has a lot of posters of course meaning well but really thrashing around and not understanding 100% what they are suggesting/recommending.

We all now have legal chapter and verse from Tessa that to me reads as though, as I have been saying, this is a meaningless document and a waste of time. Even if the tenant signs it you still must go through due legal process.

So one more time please can someone set out to me the circumstances when, how and why they would get a tenant to sign one of these? If it cannot circumvent the niceties of the PFEA 1977 which off course it never could the only possible scenario I can see is when the tenant is in prison serving a sentence, of held on remand.

When otherwise would you use it?