Surrender of a commercial lease
Sun 10 December 2023
What is a Commercial Lease Surrender?
Commercial lease surrender is the process of terminating a commercial lease before its expiry date by mutual agreement between the landlord and tenant to end the lease and return the property to the landlord's possession.
How does a lease surrender work?
The tenant usually initiates the surrender process and the underlying reason for requesting a surrender is usually financial difficulty. The Landlord will then consider whether surrender is the best available option for him/her/it and if so, the parties may then negotiate the terms, which may include retention of deposit and other payments by the tenant.
If agreement is reached a formal deed of surrender will need to be drafted and signed by both parties and the tenant vacates the property and returns the keys to the landlord. There may be other formalities such as applying to the Land Registry where the tenant’s interest has been registered, to cancel and remove the leasehold interest.
Sometimes, the parties opt for a less formal approach whereby surrender happens by conduct, where it can be shown that the tenant took steps to indicate a desire to end the tenancy by returning keys for example and other steps, and the Landlord can be shown to have accepted the surrender. Simply handing back the keys is not sufficient for a tenant to demonstrate the Landlord’s agreement.
Risks of lease surrender
A significant risk for the tenant (or the previous tenant where the lease was assigned and an Authorised Guarantee Agreement is in place) is where a guarantee has been given. This can easily catch out a tenant where a deed of surrender is signed which preserves liability for any breaches of the lease up to the date of surrender and liability for dilapidations.
From the Landlord’s perspective, the risk associated with agreeing surrender is that if the property remains unoccupied for more than 3 months, the Landlord then becomes liable for paying business rates.
Alternatives to Surrender
If a tenant wants to terminate a commercial lease before its expiry date, there are a few alternatives to surrender:
- Assignment - The tenant finds a new tenant to take over the lease, subject to the landlord's approval.
- Subletting - The tenant allows a third party to occupy the property under a sublease agreement, which will typically need the landlord's consent.
How we can help
We have a very large team of specialist commercial property lawyers in many UK locations. Our lawyers are experienced and provide practical advice for Landlords and Tenants dealing with lease surrender, including negotiating, drafting or reviewing a deed of surrender, or other options to terminate a lease or find another solution. Please do get in contact by email or phone.