Surrender by operation of law is based on estoppel

In Nickells v Atherstone ((1847) 10 Q.B.R. 944; 116 ER 358) A was the tenant under a three year lease. He  moved his belongings out of the property during the lease term and asked the landlord to find a new tenant. The landlord did so but the new tenant became insolvent. The landlord then brought an action against A for the rent payable after the new tenant stopped paying rent. This action failed on the basis that re-letting the property with A’s consent gave rise to a surrender by operation of law.

Denman CJ said that surrender by operation of law arises ‘where the owner of a particular estate has been party to some act the validity of which he is by law estopped from disputing, and which would not be valid, if his particular estate had continued.’ (949).

This was true in the present case;

‘As far as the plaintiff, the landlord, is concerned, he has created an estate in the new tenant which he is estopped from disputing with him, and which is inconsistent with the continuance of the defendant’s term. As far as the new tenant is concerned, the same is true. As far as the defendant, the owner of the particular estate in question, is concerned, he has been an active party in this transaction, not merely by consenting to the creation of the new relation between the landlord and the new tenant, but by giving up possession and so enabling the new tenant to enter.’ (949)

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