Property Law

Property Leases and Licences

Contractual Disputes resolutions for start-ups, scale-ups and the entrepreneurially spirited

These are our bread and butter. Most of our clients take property leases or licences at some stage along their journey, as they work out what works best for their business when they expand, adapt and mature.

Whatever your business or type of premises, we can help guide you through the leasing process from advising on heads of terms, negotiating the lease documents, carrying out due diligence, through to completion and occupation. We will ensure you avoid pitfalls, limit your liability and your exposure to unexpected costs on exit. The cost of legal fees at the outset can unfortunately be dwarfed by unexpected issues when due diligence isn’t undertaken such as a surprise dilapidations bill at the end of the term.

As with all property transactions, taking a lease or licence works on a “buyer beware” basis so we always advise that you seek legal advice, even on the most basic level. However, we recognize that depending on the level of rent, the period of occupation or simply your budget, the level of due diligence and depth of negotiations will vary. We always give options on the level of service that best suits our clients and tailor our quotes accordingly.

Just a few of the things we can help with are:

Legal Considerations

Is there a valid contract?

A contract does not need to be written to be enforceable (except in certain situations eg transfer of land or assignments of IP), though it helps to have the precise terms in writing so that each party is aware of their obligations.
In order for a contract to be valid, it must have the following elements:

1. Offer - This is a statement of terms by which the offeror agrees to be contractually bound

2. Acceptance - The offer must be accepted, and acceptance of an offer must be unconditional

3. Consideration - Each party must exchange something of ‘value’ for a contract to valid. The consideration doesn’t have to be equal, but a contract will not be valid without some consideration.

4. Intention to create legal relations – It must be clear that the parties intend to create legal relations and are aware of their obligations

5. Certainty of terms - In order for a contract to be binding, all material terms must be agreed. If the agreement is uncertain, a court may not be able to enforce it

Terms

The terms of a contract can have differing statuses. Conditions are the most important terms of the contract. A breach of a condition will entitle a party to terminate the contract and claim damages whereas a breach of a warranty will only entitle a party to claim damages.

The contract may set out whether the term is a condition or warranty, or it may be designated in statute (eg Sale of Goods Act 1979). If there is no express classification in the contract or statute, the court will consider the nature of the contract, its subject matter and the surrounding circumstances in determining whether the term is a condition or warranty.

It is also possible to imply terms into a contract, in addition to the terms which are expressly stated. Terms can be implied on the basis of usage or custom, previous course of dealings, the intention of the parties, common law, statute and to give business efficacy. You cannot imply a term if it directly contradicts an express term.

Breach of contract

Any loss that is suffered must be a direct consequence of the breach of contract and have been reasonably foreseeable by both parties at the time the contract was entered into.

Find out how our contract lawyers can help with contractual disputes.

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Other factors to Consider

There may be within the contract a dispute resolution process which you need to follow. This could include a party sending a notice setting out the breaches and requiring the other party to remedy the breaches within a certain period.
If the breaches are not remedied there may be an arbitration clause which applies to the dispute and that process would need to be followed.
A claimant will have a duty to mitigate their loss.
If you are faced with an insolvent debtor, can you rely on a retention of title clause? This operates so as to ensure title to the goods doesn’t pass until full payment has been received so can give you priority over secured and unsecured creditors.
Has liability been successfully excluded or limited?

News, Insights & Resources
Blog

Understanding Dilapidations: Tenant Responsibilities in Commercial Leases

When you enter into your commercial lease, you will be signing up to various obligations for repair, maintenance, and decorations during the term. Some of these can be extremely onerous and many tenants will overlook these obligations during the term and only start to think about them once the lease is coming to an end or if they are thinking of leaving at a break point. By this time the liabilities could have grown and leave you having to deal with a large, unexpected amount to pay at the end of your lease.

Read More →
27th March 2025
Blog

Hotly Contested Lease Terms

During the recent session from our ‘General Counsel Know How’ series, commercial property partner Helen Lucas and consultant Michael Whitaker led an interesting discussion on hotly contested lease terms that should be properly considered even before the landlords and tenants sign heads of terms.

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5th April 2023

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