Commercial Leases - The Pinball, The Why and The Weighty Tome

In my?earlier?article I?argued?that whilst the?terms?of a lease are paramount in their?effectiveness?to?protect?the?rights?of the?landlord?and?tenant, they are often unnecessarily?complex?to navigate?due to?the?different?ways their drafting has?evolved.?In my?time?reading?a?substantial?number of?documents, 99% of which?are?electronic versions, I have come across certain layouts that are frustrating, to?say?the least.

Here?are?some?examples

The Pinball

This is maddening to the?extreme.?The?lease?starts?with a?menu?of?definitions?on the?first?few?pages?of the?lease.?It then leads?you?deep into the?document?and?you?come?across a?term?that needs?defining, for?example,?the?Term?Start?Date.?Rather than?stating?the?Term?Start?Date?there and then, it will?say?something like, ‘as?defined?in?the?Rent?Start?Date’.?The reader is taken back to the start of the lease only to find that the definition of the rent start is defined as ‘The Contractual Start Date’ and we are taken even farther back until we finally find the definition we are looking for. How can this make sense?

The Indecipherable

You’ve?just?spent?a few thousand pounds in?getting?your?lease?drawn up, and finally,?just?before?completion,?your?representatives?include?the all-important?dates?by hand.?These?include?the?date?of the?lease, the?rent?start?date, and perhaps some handwritten break or?rent?review?dates.?A few months later you?refer?to your?lease?to?check?the?rent?commencement?date?which is?defined?as ‘the term?commencement?date.?And then you?get?this,?is?it a 5, a 9 or even a 0?

Why are some leases covered in crossings out, scribbles and often unreadable writing when we have word processing and a dry signature having the same weight in law as a wet one?

The ‘Why’?!

If we asked 1,000 landlords and 1,000 tenants what they considered to be the most important clauses within a lease, I doubt it would be a definition of ‘arbitration.’?And yet this can?appear?before any?mention?of the financial implications on the?landlord?and?tenant.?Indulge?me if?I?am?out of?turn,?but?I?would?suggest?the ‘rents’ are what is?normally?on most?people’s?minds.?I recently read a lease where the rent appeared on page 36 of a 45-page?document.?WHY?

The Weighty Tome.

I occasionally open an electronic document and discover it has more than 65 pages. My past experience has taught me that there may be a Schedule of Conditions annexed to the lease which I can ignore. The lease grows longer and longer as I scroll down, and it turns out that it has taken 65 pages to cover what would ordinarily take 32.

These are just a few examples but highlight the different ways leases are being drafted whilst all trying to offer the same protections as each other.

In my next article, I’ll examine whether there are some simple fixes we could all adopt.