Oh No….My Lease is Wrong
I have often been approached by landlords and agents, and occasionally by tenants who assert that the written lease or tenancy agreement is wrong and asking what they can do about it. The answers come from the law on rectification.
It is important to bear in mind that the normal opening statement in these discussions “the contract is wrong” is incorrect. A contract between parties is not a piece of paper. It is an agreement. The paper is simply a written record of that agreement. In legal terms, the paper is an instrument. This is a key point because the Courts will not act to rectify or fix contracts, only the instruments which record them. In other words to get a written lease changed it will be necessary to show that there was a clear agreement to do something that was not accurately reflected by the written paperwork. It is not possible to seek rectification where there was a mistake during the process of agreement which was then faithfully recorded by the lease itself.
Classical areas in which a lease or tenancy agreement can be rectified are where the rent is misstated, where parties have been misnamed or put in the wrong place, or where the property demised has been incorrectly described.
In some cases the error may not require a specific claim for rectification if the problem can be solved by simply applying a proper reading to the document. This is known as construction. This is why it is good practice to state key parts of a lease, and indeed any important agreement, twice so that there is evidence to support an adjustment by way of construction.
Where a claim for rectification is being made it is entirely the obligation of the party seeking rectification to show that it was the common intention of the parties to do something other than what is recorded. The court will be very reluctant to accept oral evidence and will also not easily accept evidence of what was negotiated before the contract was formed as this might then allow a party to effectively reopen the negotiation phase after the contract has been formed. This means that paperwork marked ‘subject to contract’ will not be good evidence. Naturally, a mass of weaker evidence may, together, add up to a substantial claim.
In summary, rectification is a claim of last resort. It is far better to get things right in advance than to rely on this sort of remedy. In many cases the issue can be resolved by simply asking the Court to put a proper reading on a document, overlooking obvious clerical errors, when it is to be enforced but sometimes there is just no other choice. In those cases every piece of evidence counts.