There had been a sale of an insurance business under which there were to be granted seven leases, two of which related to complete buildings and five to parts of buildings. All seven leases contained landlord’s repairing covenants. One of the leases of a complete building (‘The Ilford lease’) contained a covenant in the following form: ‘to keep the structure and exterior of the property in good and tenantable repair and condition.’ The other lease of a whole building had a different form of covenant: ‘4.3 . . to keep the structure and the exterior of the building (other than those parts comprised in the property) in good and tenantable condition.’ The problem was that the lease defined ‘the property’ as the whole building, with the result that, read literally, the clause meant there was an obligation to keep in repair the exterior of the property, other than the property.
Held: This was an obvious nonsense and it was corrected. ‘The problem which arises is a good illustration of the dangers of the use of the word processor to produce a draft which is then copied to provide other drafts to be adapted for the purpose of other cases.’ Looking at the leases together it could be seen that there was an obvious error and ‘What the parties plainly intended was a repairing covenant in the same form as that of the Ilford lease . .’ The draftsman of the particular lease had taken by mistake a covenant from one of the leases of a part building. This was ‘an obvious clerical error’ which the court could correct.
Judges:
Lord Justice Peter Gibson, Sir Martin Nourse
Citations:
[2002] L and TR 7, [2001] EWCA Civ 1334
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – JIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
Cited – Littman, Young v Aspen Oil (Broking) Ltd ChD 1-Jul-2005
The tenant sought to exercise a break clause in the lease. The landlord said that the exercise of the right was subject to the tenant having first complied with the terms of the lease.
Held: There was an obvious mistake in the clause which . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 07 June 2022; Ref: scu.184536