Q&As

A landlord and tenant enter into a deed of surrender of a registered lease. The reversion is unregistered. If the deed of surrender is not registered at HM Land Registry, is the deed of surrender still legally effective? Or can the lease still be enforced against the tenant?

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Produced in partnership with Nic Taggart of Landmark Chambers
Published on LexisPSL on 28/08/2018

The following Property Disputes Q&A Produced in partnership with Nic Taggart of Landmark Chambers provides comprehensive and up to date legal information covering:

  • A landlord and tenant enter into a deed of surrender of a registered lease. The reversion is unregistered. If the deed of surrender is not registered at HM Land Registry, is the deed of surrender still legally effective? Or can the lease still be enforced against the tenant?
  • What is a surrender?
  • What is the effect of surrender, absent the Land Registration Act 2002 (LRA 2002)?
  • How does surrender by operation of law work, absent the LRA 2002?
  • Statutory position
  • Does ‘Statutory Magic’ trump the effect of a surrender?
  • Do not try this at home

This exact point does not appear to have been decided, but the answer seems obviouse that the covenants should cease to be enforceable. This is perhaps one of those situations identified by Steyn LJ in Continental Bank NA v Aeakos Compania Naviera SA, ‘the more obvious the answer to a question is, the less authority there sometimes is on it’. Let’s build up from first principles.

What is a surrender?

Between the tenant and his immediate landlord, where the tenant yields up the term to his immediate landlord, the lease is determined by surrender (Fairweather v St Marylebone Property Co Ltd). Lord Denning said surrender is not the assignment of the term by the tenant to the landlord, but their agreement to destroy the term, at paras [545–546]. Lord Morris agreed, referring to Coke on Littleton ‘having regard to the parties to the surrender, the estate is absolutely drowned’, at para [552].

What is the effect of surrender, absent the Land Registration Act 2002 (LRA 2002)?

At the moment of surrender, the term of the lease ends, giving the landlord an immediate right to possession against the tenant: see Fairweather. The covenants cease to be prospectively enforceable (Torminster Properties Ltd v Green

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