'Curiouser and curiouser!' cried the judge...

'Curiouser and curiouser!' cried the judge...

Be careful what you leave open to interpretation! Be careful what you leave open to interpretation![/caption]

A run of recent service charge cases has highlighted the perils of bad drafting and signing up to contracts without reading them thoroughly.

Together, they spin a sanguine tale of the importance of being earnest with the written word - both in putting it to paper and in understanding it at the time of signing.

Where such failings do arise, to what extent will a court or tribunal will be willing (or able) to “rescue” a party from their consequences? The answer, as ever, largely turns on the individual facts of each case. In this post, I look at three interesting cases where varying approaches were taken.

The interpretation of “curious” drafting

In Mark Skelton v DBS Homes (Kings Hill), the Upper Tribunal (Lands Chamber) (UT) came to the landlord’s rescue despite a catalogue of ‘errors and curiosities’ in the drafting of the lease.

The service charge provisions were variously described by the UT as ‘unusual’, ill-drafted’ or and ‘curiously drafted’.

This case, unusually in service charge disputes, was not about whether the service charge had been reasonably incurred but rather whether it was payable at all.

Key issue:

Whether the on account demands for payment of service charge based on an estimate (not actual expenditure) served a couple of years after the close of the relevant accounting period- were in fact valid demands.

Held:

The UT held that the service charge was payable.

Reasoning

  • The paragraph supposedly dealing with how the tenant was to be liable for the service charge was omitted from the lease. The UT looked to the general purpose of the service charge provisions –enabling the landlord to recover from each tenant their share of expenditure which it incurs in undertaking its obligations. They held that

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About the author:

Melissa Moore is a dual qualified in England and Wales and South African lawyer and has 14 years’ experience in property practice in England. She has worked in local government and been a partner at a regional law firm and most recently an associate director at Berwin Leighton Paisner which she joined in 2005. Melissa has wide experience in all areas of property law and specializes in commercial real estate development. She has experience in a number of sectors including hotel, leisure, offices, investment, industrial, motorway service stations and funding. She has worked on large scale strategic developments and government funding initiatives, town centre regeneration schemes and private mixed use developments both for public sector and private developers and investment funds. In 2013 she was ranked by Legal 500 as recommended for local government work.