With Harry Potter spin-offs at the top of everyone’s Christmas present list this year, Peter JG Williams spills the beans on some of his favourite spells
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” Many property lawyers were trained at Hogwarts and know a spell or two ” Spells are dangerous when used without proper training ” In case of doubt, please consult your spell checker |
Many readers will by now have seen the film Harry Potter and the Philosopher’s Stone, and realised how effective magic can be when used by experts.
Now, for the first time ever, we can reveal that many of the country’s leading property lawyers trained at Hogwarts and use spells on a daily basis.
For detailed explanations of these spells, consult Foodwall’s Landlord and Tenant Spells (64th ed) Pleat & Oxtail 2001. For obvious reasons, the author cannot accept any responsibility for loss or damage caused by misuse of these spells. In case of doubt, consult your spell-checker.
Ascendo descendo
“Remember that the value of shares can go down as well as up” is a warning often heard and read, but it doesn’t apply to rents – at least, not yet. Since the rent review was invented in the 1960s, landlords have insisted on the ratchet principle: at a review, the rent cannot fall.
But not with Ascendo descendo. A wave of the wand by Sally Keeble (regeneration minister) – possibly aided by a threat to legislate upwards-only rent reviews out of existence – enabled the commercial leases group to resolve their differences. From March 2002, we can expect to see tenants being offered leases with either-way rent reviews, or at least appreciating the cost of buying their way out of upwards-only rent reviews.
Spell value: may well have worked on one occasion, but it is not yet clear how long-lasting the effect will be.
Fudgeo
The scene: late at night at Slaughter Paines Berwin. The sixth day of all-day-and-half-the-night meetings to settle a lease, and even the lawyers are getting fed up with the negotiations (particularly the tenant’s lawyer, who is working on a fixed fee).
The lawyers have sorted out the extent of the demise, and the repairing obligations, and the inherent defects provision. The service charge schedule took half a day, but it’s sorted now. Just the rent review provisions to finalise – and one point is causing anguish: should the third party act as expert or arbitrator? The landlord wants an expert, but the tenant wants an arbitrator – each for their own good reasons, no doubt. And everyone wants to catch the last train home.
Fudgeo to the rescue! We don’t need to agree this now: we can sort it out at the rent review itself! “The third party will decide whether he is to act as expert or arbitrator.” When are those taxis ordered for? Is there any more of that pizza?
Spell value: not recommended, but has its uses. Especially for those drafting the document.
Epistula sideria
The heads of terms for the underlease don’t mention a rent review in three years’ time, although the headlease requires one. The landlord won’t grant consent to the underlease without a rent review, but the undertenant won’t proceed if there is one.
What you need now is Epistula sideria. Include the rent review in the underlease, and show the underlease to the landlord. Then draw up a side letter to say that the tenant will indemnify the undertenant against any increase in rent arising out of the review. The side letter will be personal, so the landlord doesn’t need to know about it.
Spell value: less effective than it used to be. Not recommended at present, unless and until the Court of Appeal reverses the first instance decision in the case of Allied Dunbar Assurance plc v Homebase Ltd [1] EGCS 54 next spring.
Convulsio
This is one strictly for the grown-ups – so powerful that many wholesalers can’t handle this level of magic. Please accept our apologies if part of the text has been obscured in your copy of Estates Gazette.
Spell value: takes time to learn, but worth the effort, as you can see.
Syntaxo
This is a tricky negotiation. If the opposition work out the manner in which these two provisions interact, they will spot that the rent will double and they will walk away.
Syntaxo is what you need. Mangle that (those?) syntax. Confuse that spelling. Foul up those cross-references. Use the macro to compile the table of contents. Leave in inconsistent alternatives. Italicise inappropriate words. And most important of all, ensure that the clause numbering is not sequential. Anything to avoid the recipient reading the words.
Spell value: 98% effective; ineffective on the remaining 4%.
Remember: don’t abuse your new knowledge. The Dementors know where you live…
Peter JG Williams is head of magic in the property group at Eversheds
