Data Sharing
Statement of Intent
The Lease contains a provision which a) ensures L and T regularly and transparently share data regarding at least the use of energy, water and waste within the Premises and the Building (including the common parts) and where agreed other Environmental Performance [and Social Impact] data with confidentiality obligations re all data and tenant consent to access for landlord to its relevant data direct from tenant‘s supplier and b) ensures that an individual meter/submeter/AMR can be installed in the Premises to capture energy and water usage and c) ensures proper use of any smart building technology .
Preamble
The BBP considers the collection of data to be a key pillar of delivering energy and resource efficient buildings as part of the transition to a Net Zero future. Additionally, the CLLS Certificate of Title Eighth Edition 2023 has been updated to include a statement that the Landlord and the Tenant share data relating to Environmental Performance and, as such, it is expected that this will become a market standard position. The BBP is exploring how data sharing between owners and occupiers can be effectively facilitated and hopes to be able to provide additional guidance to landlords, tenants and managing agents in relation to this issue.
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
Data Sharing:
(a)The Landlord and the Tenant will share with the other the energy, water and Waste data they hold relating to the Premises [and the Building] [including (in the case of the Landlord) the Common Parts] and such other Environmental Performance data [or Social Impact data] as may be agreed from time to time by the parties. The energy, water and Waste data and any other data the parties agree to share will be shared on a regular basis [but not less frequently than monthly/quarterly/annually], with each other, the Managing Agent and with any third party who the Landlord or the Tenant (or both of them) (acting reasonably) believes needs to receive that data including for the purpose of any reporting or advice subject to the provisions of clause [(b)].
(b)The Landlord and the Tenant will keep and will ensure their agents or advisers keep that data confidential except that they are entitled to use that data for any of the following:
- (i) monitoring and Improving the Environmental Performance [and Social Impact ] of the Premises [and the Building];
- (ii) measuring the Environmental Performance [and Social Impact] of the Premises [or the Building] against any agreed or other targets; and
- (iii) any reporting required by any Act or regulation or any voluntary certification or rating scheme affecting the Premises [or the Building] or the Landlord or the Tenant or required by any finance arrangements of either party.
(c)Where either party or their agents or advisers use the Environmental Performance data [and Social Impact data] for any reporting, that party must ensure that they and their agents or advisers ensure that all data is anonymised.
(d)The Landlord and the Tenant must each nominate a point of contact responsible for data sharing and must promptly notify the other where this point of contact changes.
(e) Where the Tenant procures its Supplies directly from the providers of those Supplies the Tenant hereby authorises the Landlord to contact those providers direct to obtain consumption data in relation to the Premise and will at the request of the Landlord provide any letter of authority a Supplies provider requires.
(f) Nothing in this provision will oblige the Landlord to disclose to the Tenant Environmental Performance data received from any other tenant or occupier of [ the Building].
(g) The Landlord will not disclose the Environmental Performance data provided by the Tenant to any other tenant or occupier of [ the Building].
Drafting Note
This clause extends the provisions of paragraph 3 of the Sustainability schedule (Schedule 7) of the MCL as it extends the ability to disclose the shared data to cover possible reporting requirements on the parties and green finance requirements and provides for direct access for the Landlord to utility suppliers supplying the Tenant. This would ease the burden of any data sharing obligation on the Tenant. "Supplies" is defined in the MCL to cover all usual utilities. No right of access for the Landlord to review and measure Environmental Performance is included here as paragraph 3.1.1 of part 2 of Schedule 1 of the MCL contains such a right.
This clause would be substituted for paragraph 3 of the Sustainability schedule (Schedule 7) of the MCL.
Only one version of this clause is provided as this issue is of critical importance, is not disproportionately onerous given the importance of sharing this data and should be something the parties are able to agree.