Are you sure that is a cup of tea? It is in a mug, and I don’t drink mine with lemon…
Semantic interpretation or just pedantic interpretation? One of the most difficult elements of landlord and tenant law founds itself within the most vital document – the lease. Notwithstanding the myriad of landlord & tenant legislation and interplay of the Companies Act, the starting point for any question surrounding a lease should simply be: the lease.
Frustratingly, for both landlords and tenants, there is not ‘one lease’ which applies nationwide and to all properties of a similar construction. There is in reality a terrific number (I don’t know the actual number but will go with terrific for the moment) of leases drafted across a vast period of time, and often amended by short form extensions or variations.
So there you are with your lease, and warm drink of choice, head in hands trying to understand why the draftsman had such an aversion to commas, and trying to figure out whether some risk was your landlord’s to insure against, whether that balcony is within your repairing obligation or some such other question which you didn’t think about at the time of acquiring your lease as it was such an abstract point you would never have given it time of day.
You find the provision (you think); you read it forwards, your read it backwards, maybe if you rotate it slightly…no. Ah, this bit says read the 876th Schedule…there is no 876th Schedule…your lease suddenly finds itself in a crumpled heap at the foot of the opposite wall.
You are not alone in following these first stages of lease interpretation – some may even suggest it is a rite of passage.
So, what do you do now? You have found some words, scattered loosely around the lease, which go to the question you have but nothing is quite as clear as it ought to be. You could argue that it says what you think it should say, but if you put a slant on the meaning of the words it could say something completely different – or at least place the obligation on another party to address.
The Do’s
In the case of Arnold v Britton [2015] UKSC 36 Lord Neuberger quite simply explained (at paragraph 18, paraphrased):
that the court should not set out to embark on exercises searching for, or constructing drafting infelicities in order to facilitate a departure from the natural meaning of the clause
Probably not the most helpful of comments in isolation, but there is a more defined process (at paragraph 15), being that:
“meaning has to be assessed in the light of:
- The natural and ordinary meaning of the clause;
- Any other relevant provisions of the lease;
- The overall purpose of the clause and the lease;
- The facts and circumstances known or assumed by the parties at the time that the document was executed, and
- Commercial common sense; but
- Disregarding subjective evidence of the parties’ intentions.”
Although it is not a given that a lease will be read as you want it to be read, the simple point to take away from this is that what you generally think it says from a common-sense perspective, and what would make sense in the context of the rest of the lease, is probably a good place to start from.
The Don’ts
The above is clear on the first Don’t: don’t try to be cute. If there is a simple and clear interpretation, or an abstract perversion which can be shoe-horned in if you take the 3rd synonym for every operative word, the Court are likely to prefer the first option.
Secondly, don’t try to start attempting to self-justify rectification of the lease just because what you have read does not mean what either you or the landlord thought it did.
For example, if I say “I drink tea” you cannot interpret that to mean that I do not also drink coffee or hot chocolate. Before you go inserting words which may not be there in order to perfect an imperfect clause remember: some leases are just not helpfully drafted.
Often inconsistencies may arise where the terms of an historical lease have been incorporated into a new lease, and the draftsman has not fully considered the interaction between the new lease and the old lease, so do not be surprised if you are in one of these situations and are finding an inconsistency.
Thirdly, remember the Court will not want to infer new obligations into the document nor are they likely to start varying a lease simply because one party has latterly discovered they have not got as good a bargain as originally thought, so you should not either.
The “Better Give Some Thought To’s”
Finally, and before planting the proverbial Interpretation Flag in the sand, it may be prudent to see whether there is any legislation which applies to this form of clause (say lessor determination clauses which are covered by s.27A(6) LTA1985), or if there is any caselaw which could assist / will be persuasive on how the Court should interpret these points.
Hopefully the above has given you some direction on where to start when trying to translate and navigate your seemingly impenetrable document of words.
As for me, I will continue to quaff my cooled from boiling but not cold beverage of steeped leaves from some tea plant or another (doesn’t have the same ring as ‘have another cuppa’ does it? But I’m sure you would have all known what I meant if I had said that) and continue to stare in wonderment at the creativity of drafting styles from practitioners past.
Charles Jamieson is an experienced solicitor in the Bishop & Sewell Dispute Resolution Department, taking instructions in Landlord & Tenant, Property, Commercial and Chancery disputes. If you would like to speak with Charles, or any member of the Dispute Resolution team, contact Bishop & Sewell by email to: litigation@bishopandsewell.co.uk
The above is accurate as at 22 February 2021. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
