Venues with 50-year-old leases may find that some of the wording has lost its meaning.
By Graeme Keeler of thePublican.com's team of legal experts from London solicitors Joelson Wilson.
The changing use of our language over time is to some extent what makes English special, but in the legal world - and particularly in the property arena - this can cause a number of unexpected problems to arise. When some leases are 50 years old or more, the changing use of our language coupled with changes in trends and fashions can make their interpretation less than simple.
A recent case in the Court of Appeal, involving the interpretation of wording in a user clause of a head lease, has shown that although the common use of words may develop, sometimes it is the traditional definition that actually matters when determining matters such as this. The case in question involved the proposal to sub-let premises to Prêt à Manger, the popular chain of sandwich shops. The headlease, which dated from the 1950s, contained a user clause which prohibited a whole host of trades and uses, many of which have long since vanished from our high streets. One of the prohibited uses was that of "victualler". This is a word that has essentially ceased to be used in everyday English and is only really associated with the trade of licensed victualler, that is, someone who runs licensed premises and sells alcoholic drinks. In fact the word, without the "licensed" prefix, is defined simply as someone who sells food and drink.
Essentially the freeholder objected to the proposed use of the premises as a sandwich shop, arguing that this was prohibited by the user clause in the headlease as it fell within the trade of victualler. The lessees, who proposed the letting, argued however, that the word victualler had developed over time and was now only used in the context of licensed victualler. They also argued that at the time that the lease was entered into, this was also the case and that the context that should be given to it was to restrict the use of the premises by licensed victuallers, rather than anyone who merely sells food and drink.
The judge in the High Court decided that this was correct and that in the 1950s, at the time the lease was entered into, the word victualler was only associated with the prefix "licensed" as this was its main use in modern language. Therefore, the use of the premises by Prêt à Manger would not breach the user clause.
However, in the Court of Appeal it was decided that when there is any doubt as to how a word can be construed in context, you should look to its definition in the dictionary. Naturally this provides the wider meaning.
Therefore, when the lease was drafted, if the restriction was only to mean licensed victualler, the adjective would have been added. The proposed use would be a breach of the clause and the freeholder was able to object to it.
Why is this relevant? Imagine the case of premises which become a gastropub, with a very high proportion of food sales. The lease is 30 years old and restricts the use of the premises to that of a public house only. If you look at what the common perception of a public house would have been 30 years ago, it would probably have been a place to go to consume alcohol, rather than to have a meal. A landlord may see the Prêt à Manger case as an opportunity to refuse consent to a gastropub.
The case is an example of the courts looking to the intentions of the original parties to leases and the definitions of words and language that were available then. However, with the continued development of our language and customs, there is no doubt that further anomalies will come to light.