There are a number of tools available to property litigators to help parties to a lease if they find themselves in such a predicament. What is appropriate will, of course, depend on circumstances but the below might be helpful as a starting point.

1. Good to talk

It may be the other party to the lease agrees it is unclear or contains an error. In these circumstances, if necessary, the correction to the lease can be documented quickly and in a cost effective way, usually by way of a simple deed of variation.  

In the absence of agreement or if it is necessary to involve the court the following might be available. 

2. Construction

Generally the Court will respect the words used by the parties to give effect to the deal they have made even if those words lead to an uncommercial result for one of the parties. Construction of language used in a lease is critical in determining its meaning. However sometimes a particular word in a document might give rise to questions around its construction. For example, a landlord may be permitted to carry out and recover the costs of works to “renew” a property. Does this mean works of repair only or does it go further and allow improvements? Generally, Courts construe the word “renew” as akin to repair however where there are other terms in the lease which indicate a clear intention to allow a landlord to improve a property and recover its costs, a Court may be persuaded to construe “renew” as meaning “improve”. 

3. Implication

If a lease is clearly missing crucial words or provisions that are necessary to make it function it may be possible to argue a term should be implied into it. The traditional requirements for implication are (1) business efficacy or necessity and (2) the “officious bystander” test. A term may be implied into a lease if it is necessary to give business efficacy to it and it is so obvious that it goes without saying or using the "officious bystander" to show that, had an officious bystander suggested the term to the parties at the time of contracting, they would have responded "oh, of course."  Broadly the law around implication of terms is about the correction of oversights, rather than mistakes.

4. Rectification

It may be that a provision in a lease is simply wrong. In such a case, where there appears to be an error on the face of the document, a Court can look at the pre-contractual negotiations to discern what the parties really meant the lease to say, and make an order rectifying the document if satisfied the drafting did not reflect the intentions of either party.

Litigation can be time consuming and costly so ideally the words used by the parties in a lease should reflect their intentions explicitly. Legal advice should, of course, be sought before signing any legal document. Should you wish to discuss any of the issues in this alert please contact Rosa-Maria Kane.