Precedent Document

The documents set out below contain proforma replies to the suite of Commercial Property Standard Enquiries - version 3. These enable the fee earner more speedily to complete standard pre-contract enquiry replies.

However, a general warning is given in relation to the compiling of "standard" replies. It comes from the case of William Sindall plc v Cambridgeshire County Council [1993] EWCA Civ 14 (per Hoffmann LJ):

"It is well established that a statement that a vendor is not aware of a [particular matter] carries with it an implied representation that he has taken reasonable steps to ascertain whether any exists...In my judgment, the answer "Not so far as the Vendor is aware" represents not merely that the vendor and his solicitor had no actual knowledge of a defect, but also that they have made such investigations as could reasonably be expected to be made by or under the guidance of a prudent conveyancer."

The lawyer should treat proforma standard replies with great circumspection, and should ensure that all replies are tailored so as (a) to give accurate information, and (b) to avoid misrepresentation. These documents are only intended to give you the tools from which you can compile your client's replies. They do not provide the replies themselves.

A set of consultation drafts of enquiries (CPSE.6 enquiries) for the purposes of the Carbon Reduction Commitment are available for inspection. Pending approval of these enquiries by the London Property Support Lawyers Group over the summer months, some lawyers may choose to use the drafts as actual enquiries.

The drafts are:

CPSE.6A - CRC enquiries for acquisition of freehold property with vacant possession where Buyer is a CRC Participant.

CPSE.6B - CRC enquiries for acquisition of freehold property with vacant possession where Buyer is not a CRC participant

CPSE.6C - CRC enquiries for acquisition of freehold property subject to occupation leases where the Buyer is a CRC participant.

CPSE.6D - CRC enquiries for acquisition of freehold property subject to occupation leases where Buyer is not a CRC participant.

CPSE.6E - CRC enquiries for acquisition of leasehold property with vacant possession where Buyer is a CRC participant.

CPSE.6F - CRC enquiries for acquisition of leasehold property with vacant possession where Buyer is not a CRC participant.

CPSE.6G - CRC enquiries for acquisition of leasehold property subject to occupation leases where Buyer is a CRC participant.

CPSE.6H - CRC enquiries for acquisition of leasehold property subject to occupation leases where Buyer is not a CRC participant.

From here, you can access the BPF Commercial Property Standard Enquiries - CPSE version 3, and also the relevant explanatory notes.

From June 2, 2010, the CPSEs have been made available as "Version 3" enquiries, although no actual changes have been made to the content of the enquiries. Changes are merely stylistic. The enquiries are currently under review and are expected to be updated over the summer months.

The CPSEs are maintained on the Practical Law Company website, and these links will connect through to that site. The CPSEs are subject to terms of use set out on each form. Use the following links to access Version 3:

CPSE.1 – (version 3.0) - general enquiries to be raised in connection with every commercial property transaction.

CPSE.2 – (version 3.0) - additional enquiries to be raised where the purchase is subject to tenancies.

CPSE.3 – (version 3.0) - additional enquiries to be raised where the transaction is the grant of a new lease.

CPSE.4 – (version 3.0) - additional enquiries to be raised where the transaction is the assignment of a lease.

CPSE.5 – (version 3.0) - additional enquiries to be raised where the transaction is an agreement for the surrender of a lease.

Rq-form - (version 3.0) - a short-cut form for raising BPF standard enquiries.

Form Scr - (version 3.0) - solicitor's completion requirements - intended for use after exchange of contracts.

Form Ster - (version 3.0) - solicitor's title and exchange requirements - intended for use at the outset of a transaction.

A set of draft clauses dealing with landlord and tenant issues arising under the Carbon Reduction Commitment Energy Efficiency Scheme is attached below. Somewhat conversely, they are not currently recommended for use, and have not therefore been included in Property PSL standard leases.

From a risk management point of view, it may not be advisable to include CRC clauses in leases until the property market has given a clear indication as to what it expects in terms of the passing on of the cost of CRC to tenants, and the drafting to include as standard in new leases. The British Property Federation has twice consulted with the property industry in relation to CRC – most recently in its paper of December 2009: CRC Industry Consultation - with a stated aim of attempting to arrive at standardised CRC drafting. Best practice must therefore involve waiting for the outcome of the BPF consultation to see if a consensus approach develops, before advising a landlord on the suitability of lease terms.

The draft clauses attached below are therefore provided on that understanding. They may be considered for use for a landlord client who has a clear and immediate requirement to pass on the cost of CRC to tenants.

Any queries or comments regarding these clauses are gratefully received via the contact button at the top of the page.

A drafting note is also included.

This document is a precedent licence to occupy premises.

Before using this precedent document, it is advisable to read the drafting notes accompanying it. If you have any queries or comments about this document or the drafting notes, use the contact tab at the top of the page.

The drafting notes contain warnings about using a licence to occupy in cases where the occupier will have exclusive possession of the premises. To ascertain whether an agreement for business occupation is a tenancy or a licence, one should apply the classic test of a tenancy given by the House of Lords in Street v Mountford [1985] AC 809: unless the surrounding circumstances indicate to the contrary, a court will infer a tenancy wherever there is exclusive possession of premises, at a rent (although this is not essential), for a term (either periodic or fixed). Just because an agreement says it is a licence does not mean that it is a licence: “The manufacture of a five pronged instrument for digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade." (Per Lord Templeman)

Also attached is a draft letter which is intended to provide a would-be tenant with access to a property pending settlement of the terms of a travelling draft lease (which is appended to the letter).

In all cases, the solicitor for the landlord/owner/licensor should consider using alternatives to a licence to occupy, such as (a) a contracted-out lease; (b) a short-term/short-form lease within section 43(3) Landlord and Tenant Act 1954; or (c) a tenancy-at-will.

This draft lease is the Property PSL lease of industrial unit (part of estate) but without including the Land Registry prescribed clauses. It is therefore intended for use where the lease is not a registrable disposition within section 27(2) of the Land Registration Act 2002.

For detailed drafting notes relating to the alienation provisions, the guarantee provisions, the insurance clauses, and the rent review clauses included in all Property PSL leases, see the Property PSL lease of whole (office).

For detailed drafting notes on the operation of service charge provisions in Property PSL leases, see the Property PSL lease of part (office).

The drafting notes should be read before using this lease.

This draft lease is a demise of the whole of an industrial unit forming part of an industrial estate. It imposes on the tenant a full repairing liability in relation to the demised unit, but imposing a service charge in relation to estate costs. The draft lease includes provisions for a guarantee of the tenant's obligations, and an open market rent review clause. Where appropriate, provisions are included to deal with energy efficiency regulations.

The lease is drafted on the assumption that the landlord's solicitor will have been responsible for the drafting of the lease. It is therefore intended to be biased in favour of the landlord, although not unreasonably so.

The lease includes the Land Registry prescribed clauses.

For drafting notes on the main body of Property PSL leases, and for drafting notes relating to the alienation provisions, the guarantee provisions, the insurance clauses, and the rent review clauses included in all Property PSL leases, see the Property PSL lease of whole (office).

For detailed drafting notes on the operation of service charge provisions in Property PSL leases, see the Property PSL lease of part (office).

All drafting notes should be read before using this lease.

This document is a Memorandum of Understanding. It appears in a guidance paper - “Green Lease Toolkit (Working together to improve sustainability)” - published by the Better Buildings Partnership (BBP).

The BBP is an initiative led by the London Climate Change Agency with the aim of bringing together large commercial and public property owners to improve the sustainability of London’s existing building stock and accelerate the reduction in CO2 emissions from those buildings. As the concept of greener leases grows over the next few years, the recommendations of good practice given by the BBP are likely to filter through to the property market throughout the country.

The Memorandum of Understanding is designed to be used in full or in part and either on the grant of or at any stage during a lease For further information on the use of memoranda of understandings, click on the BBP Green Lease Toolkit.

The document attached below is a rent variation deed. It is intended for use where a landlord and tenant agree that rental payments should be varied from the usual quarterly method to monthly. The British Retail Consortium has been calling on commercial landlords to change the frequency of rental payments and accept rents monthly in advance. See the BRC Rent Monthly Campaign.

The deed is drafted on the assumption that the concession is terminable, and is personal to the tenant. A deed has been selected for use, rather than a side letter, because of the many issues that may need to be covered by the drafting. Any comments or queries relating to this deed can be sent by using the Contact tab at the top of the page.

Before using this deed, you are advised to read the drafting note attached below, and you are advised also to read the Property PSL infobank document - What issues arise where landlords agree to vary to monthly rents?

This lease is a short form lease of part of building. It is not restricted for use in connection with any particular property sector. It is intended for short-term lettings outside the protection of the 1954 Act. The 1954 Act will be excluded either by way of a contracting-out agreement (see clause 8), or by virtue of section 43(3) Landlord and Tenant Act 1954. If considered necessary, there are short-form service charge provisions. Simple rights are granted and reserved.

Preferences over the form and content of a short form lease can differ between lawyers. If you have any comments on the style or content of this draft, please do not hesitate to pass them on by using the contact button at the top of the page.

The accompanying drafting notes should be read before using this lease. If you have any queries or comments about this document or the drafting notes, use the contact tab at the top of the page.