Defining the property

It is vital that the lease identifies clearly the extreent of the property that the tenant is entitled to occupy (and obliged to repair), together with any other areas that the tenant will have a right to use. The property let to the tenant may be referred to as the “Demised Premises”; more modern drafting will simply refer to the “Property”.

If the lease relates to the whole of a freestanding building, the definition of the Property will be straightforward. If title to the Property is registered, the definition should include the title number (for example “the property known as Unit 4, The Retail Park, Anytown, registered with title number XY 12345”).

If only part of a building is being let, the definition must set out clearly which parts (if any) of the structure (such as load-bearing walls and joists) are included. Office premises are usually let by floor, on “internal only” leases.

Typically, the tenant will get

• the space enclosed by the walls, floor and ceiling;
• the inner half of any non-loading bearing walls dividing the Property from the rest of the building;
• the floor; and
• the ceiling and the space above it, up to the slab of the floor above.

Unless there is a statement to the contrary, a lease includes the ground below the Property and the airspace above it, to the height necessary for the ordinary use and enjoyment of the land and any structure on it (Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479). This prevents the landlord letting valuable roof space to telecoms operators. It may also affect the landlord’s ability to place air conditioning units on any adjacent property it owns, even if they are several metres above ground level (Laiqat v Majid [2005] PLSCS 114).

Plans

The verbal description of the Property should be supplemented by a plan. A lease for more than seven years will have to be registered and so must include a plan that satisfies the Land Registry’s requirements.

The verbal description will usually be more detailed than the plan, so it has been common practice to refer to a plan being “for identification only”. This means that the description of the Property will prevail. However, current Land Registry practice is to reject plans expressed to be for identification only. In practice, if these words are included in the description of the Property and not marked on the plan, the Land Registry may not object, although it is unwise to rely on this. A compromise may be to refer to the plan as showing only “general boundaries“ and to make sure that the plan and the verbal description do not contradict each other.