The following Property Disputes Q&A Produced in partnership with Natalie Brown of Radcliffe Chambers provides comprehensive and up to date legal information covering:
Where a party finds that the provisions of a lease or other written contract appear to have an unexpected effect, or contain an error, the remedies open to it depend on the nature of the mistake and the way in which it arose.
Where both parties to the lease are agreed as to how the provisions were intended to operate and are willing to stand by that original agreement, then the most straightforward and cost effective solution is to simply agree to a variation of the lease.
It is more common, however, that there is disagreement as to how the provision was intended to operate, or that one party seeks to take advantage of the error in drafting. There are then three possible options open to the party who views the drafting as an error:
purposive interpretation of the lease
rectification of the lease
passing on losses occasioned to professional parties involved in the drafting of the lease
Which of these options is open to the complaining party will depend on a number of factors, including in particular: the clarity of drafting, the nature of the error and the extent to which contemporaneous evidence is available to show how the error arose.
Sometimes it is possible
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