The different effects of notice to quit and surrender on sub-tenants

Where a tenant has agreed with his landlord not to serve a statutory counter-notice in response to a notice to quit this is not the same as a surrender. The notice to quit will also bring a sub-lease to an end while a surrender will not.

Barrett v Morgan ([2000] 2 AC 264, HL) concerned an annual tenancy of agricultural land. The tenants had created a sub-lease. It suited both the landlord and the tenants of the head-lease to bring the sub-lease to an end. So they agreed that if the head landlord served a notice to quit then the tenants would not serve a statutory counter-notice that deprived the notice to quit of effect unless confirmed by the relevant authority. The aim was to bring to an end both the lease and the sub-lease. It is established law that if a tenancy is brought to an end by notice to quit then any sub-leases are also brought to an end. It has also long been settled that the surrender of a head-lease does not bring a sub-lease to an end. The question here was whether the agreement that no counter-notice would be served was tantamount to a surrender. The House of Lords held that it was not. A notice to quit and a surrender are distinct concepts. In the case of a notice to quit, the natural life of the lease comes to an end because it is determined in a way that had been envisaged from the outset. This is no less true if the landlord and tenant reach an agreement about the service of the notice to quit. Otherwise, a landlord would be prevented from doing with the tenant’s consent something that he was entitled to do without the tenant’s consent.

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