Do you have consent to surrender?
Although your landlord has the power to accept your surrender to the lease, they can only exercise this power with the consent of their mortgage provider. Without such consent the surrender, although accepted by the Landlord, may result in the surrender being void.
In the recent case of Co-operative Bank Plc v Deutsche Bank AG [2017] EWHC 1820 (ch) the High Court questioned whether there was an implied condition precedent that the landlord party to the deed for surrender had obtained their mortgage providers consent. It was held that this was not to be the case and such consent cannot be implied and as a result meant that the surrender of the lease was not effective and the tenant was therefore not released from their liabilities under the lease until properly surrendered.
This is a daunting reminder that a simple deed which has been agreed by Landlord and Tenant can fall short by not considering the requirement to obtain consent from the landlord’s mortgage provider.
Our professional and friendly team in commercial property can assist you with entering into a surrender deed with your landlord/tenant and ensure that all due diligence has been carried out with all the necessary consents, resulting in you being successfully relinquished from your liabilities under the lease.