A recent case highlights the importance of clear drafting when specifying the term of a lease and reminds us how easily things could go wrong if we are not precise.
Calmac Developments Limited v Wendy Murdoch
In this case the lease had come to the end of its term. Although the landlord had served the necessary notices the tenant refused to leave and the landlord raised court proceedings to recover possession. The outcome of the case depended on whether the lease was what is called a "short assured tenancy". If it was, the landlord would be entitled to recover possession however if it was not then the action would be dismissed.
For a tenancy to qualify as a short assured tenancy it must be "for a term not less than six months".
In this case the lease stated:
"the date of entry will be 29 April 2011. The Let will run from that date until 28 October 2011…."
How do we calculate the term of a lease?
Are the first and last dates included? The Housing (Scotland) Act 1988, which governs short assured tenancies, gives no guidance on how to compute the term of a lease. One therefore has to look to the general principles of civilis computatio
"i.e. that fractions of days are not to be reckoned, but computation is to the midnight following or preceding the last day of the specified term" (Bell Principles, 10th edn, 1899, s.46).
Accordingly, under these principles, when calculating a period of time, the day on which the period begins is excluded and the day on which it ends is included.
In this case, using the general principles, 29 April, the first date, would be excluded and 28 October, the last date would be included. The lease would be one day short of a period of six months and the landlord would be unsuccessful.
Are there any exceptions to the general rule?
Although the starting point is that the term is computed civilis computatio
, there can be exceptions if the contract allows. In this case the lease referred to the "date of entry"
being 29 April. This implied that the first day, contrary to the general rule, was to be included in the term of the lease.
In a lease using the specific words "date of entry" implies that the tenant contemplates taking entry on that date and this accordingly creates an exception to the general rule.
Accordingly the lease commenced at midnight on the 28 of April and the term was exactly six months.
Interestingly, if the lease had merely stated it ran "from" 29 April the Sheriff would have held the normal civilis computatio
rule to have applied so as to exclude that date from the term.
This case illustrates the importance of clarity in drafting when stating when a lease begins and when it ends. Precision is essential in all documents where a period of time is being specified. To avoid arguments and disputes it is good practice to put the matter beyond doubt: "The period of the lease will be from (and including)
the Date of Entry until (and including)
the Date of Expiry"