Why are commercial property leases so complex to navigate?

Over the past 30 years in my role as a Chartered Surveyor, I have read thousands of English residential and commercial leases and property-related documents. The thing that always strikes me is that despite hundreds of years in developing a modern lease and the terms that are contained therein, for the layman, and even myself, some of them are still insanely difficult to navigate.

Please don’t get me wrong, I appreciate that the terms, which have been built up over the last millennium need to be incorporated into a lease and are paramount to its effectiveness in protecting both Landlord and Tenant. I am not suggesting we sanitise something that has been built up after years of case law but rather that we try and steer a path toward a more user-friendly document where key terms are easy to identify and the lease is only ever referred to when a more complex dispute arises.

The most critical issue right now is that modern leases have been built up over time by various legal practises that then add and amend their own generic documents. As the lease evolves into something that has withstood the test of time, the same format is used. As a result, the layout never changes. New clauses, such as the 'Pandemic Protection' clauses, which I'm seeing more and more of, are inserted in different parts of the lease depending on the existing layout and the whim of the person drafting it. I believe it is a case of "if it isn't broken, don't fix it." Why should we, after all?

In my time reading leases there have been changes and they have greatly improved since the dark days of the ’70s and ’80s. In those days the lease read like a single paragraph, and if you lost your place, it was back to the beginning assuming you could focus on it for that long. Indexes have appeared at the start to make life easier, but this is seldom by no means the case with all leases. Headings have appeared, to back up the indexes, and in general, this makes navigation easier, but again this is rarely by no means the case across the industry.

I believe there are some minor improvements that could be made to make the modern lease a more user-friendly document, without detracting from the required core clauses, and I will discuss these in a future article. The Law Society Lease was an admirable attempt to make life easier, but perhaps we need to adapt our approach as we draft new leases in the future.

In my next article, I'll look at some of the more onerous leases out there. Thanks for reading.