Surrender Versus Forfeiture In Lease Agreements

A little known fact is that lease agreements actually establish two entirely separate legal relationships between the landlord and tenant. The first is a right of possession granted to the tenant, and the second is a list of contract rights, which is what allows the landlord to collect rent. Though the lease agreement establishes both of these, they can be cancelled separately and through different means, though certain actions can cause both to be cancelled simultaneously. Cancellation of the right of possession is termed a forfeiture, and cancellation of the contract rights is called a surrender.

Because a tenant can’t unilaterally forfeit their right to possession or have the landlord surrender their contract rights, it falls on landlords to follow the proper procedures when a tenant chooses to vacate the property or stop payments. A savvy tenant could escape paying missed rents if the landlord unwittingly cancels the contract rights. On the other hand, a savvy landlord could put a former tenant on the hook for missed rent payments if they follow all the legal procedures, though one of the legal procedures involves notifying the former tenant, so this isn’t necessarily easy.

It’s always in a vacating tenant’s best interest for the contract rights to be surrendered. Landlords need to be careful of following the law when attempting to lease a property that is legally still in a vacating tenant’s possession, but it’s not always in their best interest to initiate a forfeiture. The landlord could instead act as the tenant’s agent in subletting the property, while continuing to collect rent from the tenant for the remaining duration of the lease agreement. However, to do this, the term of the sublease must end on the same date as the existing lease agreement, otherwise the landlord is considered to have illegally given possession to a new tenant while the former tenant still retained it.

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