Seminar ideas: smokepuff


This extract comes from the "service charge" clause of an English lease:

... PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that the Lessor shall be entitled at its absolute discretion to vary the proportion of the Service Costs payable by the Lessee as defined in clause 1(n) in the event of rights being granted pursuant to the terms of paragraph 5 of the Fifth Schedule hereto Provided that such variation shall not result in the said Service Charge proportion being increased

Students not familiar with service charges will need an explanation:

Usually when parts a building, or of a commercial or residental estate, are let to different tenants, either the landlord or a management company is responsible for the maintenance and management of the shared facilities, including the structure of any shared building.

The landlord (or management company) recoups the cost of this service from the tenants, each of whom pays the proportion prescribed by their leases. This service charge is paid in addition to the rent.

Students spent about 10 minutes considering how much of this extract is necessary and rewriting it as succinctly as possible. They usually worked in groups of 2 or 3.

I would walk around listening to their discussions, reading what they had written so far, and making suggestions. Once most of them had finished I'd ask a spokesperson from one or two groups to read their redrafted version for discussion.

A separate handout, for students to consider later (or when they had finished the exercise) included this list of drafting faults in the original:

Punctuation

  1. The punctuation has been omitted (in particular commas or brackets to break up the long first "sentence", and the full stop in line 4).

Capitals

  1. Capitals are misused to mark what should be a new paragraph.

  2. The capitals in "Service Costs" are presumably intended to flag a defined term, but are "Fifth Schedule" and "Service Charge proportion" defined?

  3. Is the capital P for the second "Provided" an indication of a missing full stop?

Sentence construction

  1. A 70-word sentence is too long.

Overblown phrases

  1. "Shall be entitled at its absolute discretion to" = "may [if it wishes]".

  2. "Vary the proportion ... Provided that such variation shall not result in said Service Charge proportion being increased" = "reduce the proportion".

  3. "The proportion of the Service Costs payable by the Lessee as defined in clause 1(n)" = "The Tenant's Share" (or some similar defined term).

  4. "In the event of rights being" = "if rights are".

  5. "Pursuant to the terms of" = under".

  6. "Provided that such variation shall not result" = "unless the variation results".

  7. "Shall not result in ... being increased" = "does not increase".

Redundant words

  1. "Always".

  2. The second half of the main conjunction ("and it is hereby agreed and declared").

  3. "Hereby".

  4. The second half of the subsidiary conjunction ("and declared").

  5. "Hereto".

  6. "Said".

Wrong tense

  1. "Shall be" = "is".

Unnecessary use of passive verb

  1. "It is agreed" = "we agree".

Confusing words

  1. "Lessor/lessee" instead of "landlord/tenant".

Inconsistency

  1. "The proportion of the Service Costs payable by the Lessee as defined in clause 1(n)" becomes "the said Service Charge proportion".

Ambiguity

  1. Which is defined in clause 1(n): the "Service Costs", "the proportion", or "the Lessee"?

Unnecessary cross-reference

  1. "As defined in clause 1(n)".

Multiple negatives

  1. "Provided always ... Provided that such variation shall not result".

The most succinct revision is to omit the clause altogether, as all it says is:

The landlord may (but does not have to) reduce the tenant's contribution to the service charge if certain conditions are satisfied.

Is this clause likely to be used? Has anyone ever heard of a landlord who told tenants "I'm going to reduce your payments"? And if this did happen would the tenant object on the ground that "It's not in my lease!"? In any case, anyone can waive any payment due to them if they want to, without permission and regardless of whether conditions are satisfied.

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