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Can a Deed of Surrender be written to have effect on a future date?

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Author Topic: Can a Deed of Surrender be written to have effect on a future date?  (Read 142 times)
Full Member
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Landlord - always learning

« on: April 20, 2022, 05:40:42 PM »

This is a hypothetical situation at the moment but I'm asking these questions to make sure I have all ducks in a row just in case...

Background:

An AST with a 12 month initial term has a 6 month mutual break clause with a requirement for 2 month's notice from either the landlord or the tenant, depending on who exercises the break.

Due to 'certain events' the landlord wishes to repossess the property before expiry of the initial term using the break clause.

Landlord serves a valid Section 21 Form 6A with 2 month's notice. All required paperwork (PI, GSC, How to Rent, etc) was supplied to tenant at the start of the tenancy. 

Tenant acknowledges receipt of the Form 6A.

After a month and a half, tenant says that they will need an extra 3 weeks to complete their renting of, and move to, a new property.

Landlord is willing to grant this extra time but wants to make sure tenant does go by the new date.


Questions:

1. Is there a way of re-issuing the Form 6A with a possession required date 3 weeks later? Or does the requirement in the tenancy agreement for 2 month's notice to be given prevent this?

Alternatively:

2. If the landlord is able to persuade the tenant to sign a deed of surrender, can such a deed be made now but written so as to have effect at a future date (i.e the date 3 weeks after the original Section 21 possession date)?

3. If that is possible, then must the tenant and landlord sign the deed on the same day, or can the tenant sign it (in the presence of a witness), post it to the landlord, and then the landlord signs (also witnessed)?

The reasons for questions 2 and 3 are that all the deed templates I have seen assume that the tenant and landlord will be signing on the same day and that the deed has immediate effect, i.e. the tenant gives vacant possession on the same date.


I have attached 2 PDFs:

- The first is a typical deed of surrender template.
- The second is a modification, intended to meet to aims of questions 2 and 3.

I'd be grateful if a forum member with a legal background could comment on the validity or otherwise of the modified template.

Thank you
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« Reply #1 on: April 20, 2022, 08:27:28 PM »

I'll start off by answering your question as posed, but it's based on a false understanding of s21 to start off with so not really important what the answer is.

Answer to thread subject: No
Q1: No, because you can issue a new section 21 notice, but any such notice would still need to give the minimum amount of notice of I'm assuming here 2 months and you're looking at a date 5 weeks away.
Q2: No.
Q3: N/A

A section 21 notice does not end a tenancy. It merely enable a time period where the landlord can apply to the county court to (re)gain possession of the property from the tenant.

A landlord break notice does end the fixed term tenancy, however nothing requires the tenant to leave at that time. The effect is as if the fixed term ended by effluxion of time. That is, if the tenant don't voluntarily leave, a periodic tenancy arises automatically by law. There's nothing the landlord can do to prevent this from happening.

So, the landlord gave notice to the tenant to leave after X. The tenant say they'll leave on X+3 weeks. The landlord better cross their fingers and hope that does happen, and not upset the tenant into changing their mind in the meantime.
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« Reply #2 on: April 20, 2022, 11:53:29 PM »

I'll start off by answering your question as posed, but it's based on a false understanding of s21 to start off with so not really important what the answer is.
...
A section 21 notice does not end a tenancy. It merely enable a time period where the landlord can apply to the county court to (re)gain possession of the property from the tenant.

Thanks for your reply KTC.

I do fully understand that the S21 notice does not end a tenancy and that the tenant could choose to remain in the property. I also understand that an application to the county court would need to be made to regain possession.

I have perhaps confused the questions by mixing in the possibility of an S21. So, I'll pose a similar situation but this time from the tenant's perspective...

Tenant wants to terminate the tenancy and leave the property during the fixed term but does not have sufficient time before they want to go to give the 2 month's notice as required by the break clause. Landlord is happy to agree to their departure on this date but wants to ensure that the tenancy will be ended properly.

Tenant finds alternative accommodation and signs a tenancy agreement that starts 3 weeks later than originally discussed with the landlord. Landlord is happy to agree to the 3 week extension but wants to ensure that the tenancy will be ended properly.

What is it that the tenant needs to write to the landlord and what in turn does the landlord need to do to confirm they agree to this? Can this been in the form of a deed of surrender initiated by the tenant, which specifies a future date?

If the tenant and landlord live a long distance apart, is there any way in which the tenant can sign, send the deed to the landlord, and the landlord then signs?

Or are you saying that a deed of surrender can only be made on the date that the tenant actually departs and has to be signed by the tenant and landlord in the presence of each other (plus the witness)?

Thanks.







 
« Last Edit: April 21, 2022, 02:04:07 PM by HandyMan »
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« Reply #3 on: April 21, 2022, 02:00:23 AM »

There are two ways to effect a surrender. One, by deed, which operates with immediate effect on execution of the deed. Alternatively two, by operation of law, i.e. implied surrender, where the actions of the parties are inconsistent with the tenancy continuing.

There cannot be a surrender to operate as from a future date.[1] Any deed purporting to surrender a tenancy in the future is void as a deed. However, it may take effect as a contract to surrender (on a future date).

A contract to surrender is a contract for the disposition of an interest in land, which must comply with the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Practically that mean you need to do a "proper" contract rather than exchange of correspondence (e.g. back and forth email).

While enforceable as a contract, a contract to surrender does not effect an actual surrender. So if the tenant changes their mind having agreed such a contract and don't leave, they still have a valid tenancy. To force an end to the tenancy, the landlord in such a circumstance would have to either go to court for possession after notice as normal, or (possibly) seek a court order for specific performance of the contract.

A tenancy ending by implied surrender is still one that has "ended properly". The benefit of a deed of surrender is that (assuming valid execution), there cannot be any question that the tenancy ended. Having said that, if you have written evidence that the tenant has agreed to leave on X date which the landlord agrees. Then on X, the property is empty, a checkout is conducted, keys hand back etc. It would be difficult for anyone to argue that an implied surrender have not taken place.

In the scenario you describe, it may be harsh but I would suggest the tenant just have to bite the bullet and give the full length of formal break notice after and only after they agree somewhere to go. If it means paying for two tenancies for an overlapping period of time, tough. If a tenant give notice to leave before securing somewhere to go, and then fails to secure new accommodation in time, that's really on them for leaving notice without having agreed somewhere to go.

[1]: 17.011 Woodfall: Landlord and Tenant, citing Weddall v Capes (1836) 1 M. & W. 50; Doe d. Murrell v Milward (1838) 3 M. & W. 328; Tarjomani v Panther Securities (1983) 46 P. & C.R. 32.
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« Reply #4 on: April 21, 2022, 09:32:35 AM »

Thank you KTC. That is clear and is very helpful.

<<<<=====  Always learning
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« Reply #5 on: May 19, 2022, 06:36:44 PM »

This is a hypothetical situation at the moment but I'm asking these questions to make sure I have all ducks in a row just in case...
...
Due to 'certain events' the landlord wishes to repossess the property before expiry of the initial term using the break clause.

Landlord serves a valid Section 21 Form 6A with 2 month's notice.
...
After a month and a half, tenant says that they will need an extra 3 weeks to complete their renting of, and move to, a new property.

Landlord is willing to grant this extra time but wants to make sure tenant does go by the new date.

Q1. Is there a way of re-issuing the Form 6A with a possession required date 3 weeks later?
...

I'm happy to report that, in the end, this all concluded well. The tenant eventually decided that they could move out on the date specified in the Section 21 notice after all.


I am now in the process of selling this property. So a new adventure...

I'm using an independent agent via eXp https://exp.uk.com/. They are more like American realtors (but charge low UK % commissions rather than US levels). It's a much more personal service, with the agent handling the valuation, the viewings, the negotiation, and the sales progression. Much better (IMO) than the way that High Street agents pass your case to different people in 'the team'.

They typically limit themselves to a maximum of only 3 - 5 properties on the market (i.e. not yet 'Sold STC') at a time, so they don't end up spreading themselves too thinly. Many of them are actually husband a wife teams, with one handling the valuation/viewings/negotiation and the other the sales progression/admin. They have all had many years working for traditional agent firms before going independent via eXp.

I interviewed 3 High Street agents and 3 independents. FWIW, my ranking, from best, downwards was:

eXp
eXp
High St
eXp
High St
High St

...so it pays to do thorough interviews to choose the right agent.

Some of the eXp agents do Lettings as well. I didn't discuss this aspect with them since I do my own tenant finding and rental management but it may be of interest to some others on this forum.
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« Reply #6 on: May 20, 2022, 09:40:59 AM »

I am glad you have been spared further hassle.Hope it all goes well.Is this a gradual shedding of the rentals?
You mention the American realtors.I have heard a few British landlords describe themselves as being in "real estate". Is this a thing now? It sounds a bit pretentious to me.
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« Reply #7 on: May 20, 2022, 11:48:29 AM »

HK: I am glad you have been spared further hassle.

Thanks. Yes, me and my partner too!

The 'certain events' I referred to in the original post were due to our carefully vetted (professional person) tenant going rogue on us.

They started acting in a very 'entitled' manner, became very demanding ("can you send someone around to do this/do that/do something else") and were totally helpless themselves; even to attend to little things that were their responsibility.

They then made a series of increasingly absurd complaints about us and said they had involved the council and a solicitor; however, we've not heard from either, so this may have been been a bluff.

All communications from our side were polite and business-like. We kept a full record of all the emails in case we needed evidence.

The place was left in a bit of a mess; not trashed by any means, but in need of a lot of cleaning and and some repairs as a result of careless damage caused by the tenant. A fair deposit deduction has been applied for with clear justification and photos for each item claimed. We are ready for dispute resolution if necessary.

We have always done the letting and management of the flat ourselves and we've never had a tenant like this before.


HK: Is this a gradual shedding of the rentals?

The are only two; the above London flat and an inherited 3 bed house elsewhere.

The tenants in the house are long-term and are lovely. The house is the property where we managed to sack the letting/(mis)management agent, while keeping the tenants, and obtained a substantial refund of agent fees.

The flat is a long distance from where we live and, as a result of the problems with the just departed tenant, we have concluded that life's too short for the possibility of future hassles, so decided to sell the property.


HK: You mention the American realtors. I have heard a few British landlords describe themselves as being in "real estate". Is this a thing now? It sounds a bit pretentious to me.

The eXp independent agents we spoke with never mentioned the term 'realtor' nor 'real estate', which I agree does sound a bit odd in the UK.

I used the term with them when discussing the eXp UK business model, which is derived from eXp in the US and the way that realtors work there.

IMO, the days of dominance by High Street estate agents are numbered and we'll gradually see the growth of independents giving a much more personal service.
« Last Edit: May 20, 2022, 12:26:53 PM by HandyMan »
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