Construction of lease — Whether whole or part of building demised — Whether rectification required — Claim allowed
The defendant occupied part of the ground floor warehouse in Unimix House, a building owned by the claimant. Initially, the defendant’s occupation was pursuant to an informal licence, with the area of occupation shown on an attached plan. A 15-year lease was subsequently agreed. In the definitions clause of the lease, the demised “Premises” were defined as “the property known as Unimix House”. The “Building” was stated as having the meaning described in the particulars and “Plan” was defined as the plan attached to the lease. However, the particulars gave no definition of “Building”, and no plan was attached.
A dispute arose over the lease, in which the defendant asserted, and the claimant denied, that the lease related to the whole of the building, not just to the area covered by the previous licence. An issue arose as to whether the lease should be rectified on the grounds of mutual or unilateral mistake. The claimant brought proceedings to, inter alia, determine those questions and recover unpaid rent. It was common ground that the form of the lease was inappropriate to a demise of the whole of the building but appropriate to a demise of part.
Held: The claim was allowed.
The claimant was entitled to a declaration that the premises demised by the lease comprised the licenced area. The omission of a definition of “Building” and the absence of the attached plan were clear mistakes on the face of the instrument, meeting the first requirement that had to be satisfied before a court could construe an instrument so as to rectify a mistake. The expression “Building” was not otiose, and, as a matter of construction, it referred to the whole of the building and not part of it. The plan referred to in the lease was intended by both parties to be the same plan as that attached to the licence. Approaching the construction of the lease on that basis, a reader of the lease with a knowledge of the permitted matters falling within the matrix of facts would construe the expression “Premises” as being that part of the property known as Unimix House shown hatched red on the plan. It was not necessary to rectify the lease.
Stuart Hornett (instructed by Barker Gillette) appeared for the claimant; Andrew Marsden (instructed by Stephens & Scown, of Exeter) appeared for the defendant.
Sally Dobson, barrister
