Restrictions on the Landlord’s right to do works
Statement of Intent
The Lease contains provisions to prevent the Landlord carrying out works to the Premises and the Building which would adversely affect its Environmental Performance, EPC rating or other environmental rating.
Preamble
Leases of part will usually contain Landlord’s obligations to maintain and repair the structure and exterior of the Building, the Common Parts and the Building Management Systems and will not include constraints as to works it can do to these parts subject to complying with any obligations in the Lease e.g. to provide support and shelter or specified services. The Tenant may want to prevent the Landlord acting in a way which prejudices the Environmental Performance of the Building. The following drafting provides different levels of obligation on the Landlord to take account of the environmental impact of works of repair, maintenance or other works by the Landlord.
Gearing up for your Green Lease Journey
Light Green Clause:
Accelerating your Green Lease Journey
Medium Green Clause:
Driving Transformation with your Green Lease Journey
Dark Green Clause:
Suggested Drafting
Light Green Clause
Except in the case of emergency, the Landlord must not carry out any works to the Premises [or the Building and Building Management Systems] which would be reasonably expected to adversely affect the Environmental Performance or any EPC Rating or any Environmental Rating of the Premises [or the Building] unless it first obtains the written consent of the Tenant to such works.
Drafting note
Clause 2.4.8 of the MCL implies that consent will not be unreasonably withheld.
This provision could be added to the Sustainability schedule (Schedule 7) or to the Landlord’s covenants at clause 5 of the MCL.
Dark Green Clause
Except in the case of emergency, the Landlord must not carry out any works to the Premises [or the Building and Building Management Systems]which would be reasonably expected to adversely affect the Environmental Performance, or any EPC Rating or any Environmental Rating of the Premises [or the Building].
Drafting Note
This provision could be added to the Sustainability schedule (Schedule 7) or to the Landlord’s covenants at clause 5 of the MCL.
Usually, the Landlord will be under no constraints as to the works that it can do to the Common Parts of the Building or to Building Management Services that serve the Building as a whole (except the practical constraint that the lease may not permit the Landlord to recharge to the Tenant the costs incurred). The Tenant may want to prevent the Landlord acting in a way that prejudices the Environmental Performance, the EPC Rating or other Environmental Rating of the Premises or of the Building. A new EPC will only be required if works are done which create a greater or lesser number of parts designed or altered for separate use than it previously had where the modification includes the provision or extension of any of the fixed services for heating, hot water, air conditioning or mechanical ventilation. However where works are done which do not trigger the need for a new EPC, on expiry of the validity of the existing EPC those works have the potential to result in a lower EPC Rating any new EPC.
The Landlord should welcome obligations as to the mode in which works are carried out which protect the Environmental Performance of the Building and which make the costs of such works likely to be recoverable under service charge provisions where the underlying works are items which can be recovered under service charge provisions. However, where such works are improvements the cost of the works and any additional expense these provisions may involve may not be recoverable.