Introduction to Legal Drafting & Definitions

The Green Lease Toolkit offers different levels of drafting, which range from a flexible agreement for the parties, through obligations on the parties that must be commercially reasonable, to more stringent obligations, reflecting light, medium and dark green lease drafting variants where applicable.  

To show how the clauses in this toolkit fit into a standard commercial lease and to place them in the context of such a lease, this toolkit has taken as a starting point the Model Commercial Lease ("MCL") lease of part of an office building (Model Commercial Lease – Lease of part of an office building – MCL-OFFICE-02 version 1.6 ) in its form as at the date of this Toolkit. If the clauses are being added into other forms of lease, appropriate amendments will need to be made. You will need to be aware of the following interpretation provisions of the version of the MCL lease which has been used:

  • The definition of Premises includes conducting media and Landlord’s plant, equipment and fixtures exclusively serving the Premises and all Tenant’s fixtures. It may also include the Tenant’s fire detection systems. 
  • Clause 2.2 states that words such as includes and including are used without limitation or qualification to the subject matter of the provision. 
  • Clause 2.3 states that all notices must be given in writing. 
  • Clause 2.4.5 states that references to legislation are to that legislation as amended from time to time. 
  • Clause 2.4.8 states that where the consent or approval of a party is required that consent or approval will not be unreasonably withheld or delayed.  
  • Clause 2.5.3 states that an obligation not to do something includes an obligation not to permit another person to do it.  
  • Clause 5.5 includes extensive entry safeguards which the Landlord must observe when entering the Premises including an obligation to give notice, to cause as little interference to the Tenant’s business as reasonably practicable, to cause as little physical damage as reasonably practicable and to make good any damage caused. These will apply where any right of entry is provided for the Landlord in this toolkit unless otherwise stated.  

Consideration will therefore need to be given to these points when incorporating the drafting into other leases.  

The drafting notes following the clauses in this toolkit state where the clause should go in the MCL.  

DEFINITIONS

  • Community: those living, working and studying in or visiting the area surrounding the Premises [and the Building] Source Notes: As referenced in the defined term Social Impact.  
                                            
  • Digital Protocol Policy: the policy provided by the Landlord to the Tenant from time to time setting out the method for data collection and the interface with the Premises and the Building’s smart systems. Source notes: As referenced in the smart building technology provision 
     
  • Embodied Carbon: (a) In relation to building materials used for the Premises [and the Building] the Greenhouse Gas Emissions that occur through extraction of raw materials, their, manufacture into building materials and the transportation of those building materials; and 
    (b) in relation to the Premises [and the Building] the Greenhouse Gas Emissions that occur when it is or was built, repaired, fitted out, stripped out, renovated or deconstructed. Source Notes:   As referenced in the dark green service charge provisions and the circular economy clause 
     
  • Environmental Performance: all or any of the following
    • a) energy consumption 
    • b) water consumption 
    • c) Waste generation and management 
    • d) Greenhouse Gas Emissions 
    • e) the biodiversity present in the Premises [and the Building] 
    • f)  the resilience of the Premises [and the Building] to the actual or anticipated effects of climate change
    • g) other adverse environmental impacts
      • including arising from works carried out to or materials used in the Premises [and the Building] and from travel to and from the Premises [and the Building];
         
        • Drafting note This is wider than the current definition in the MCL which will need to be deleted and replaced with this definition.  When the defined term is used it is clear that it covers such matters arising out of the use and occupation of the Premises (and if appropriate the Building) but this wording confirms that the specified environmental impacts also apply to embodied carbon and travel to and from the Premises. Source Notes:  As referenced in various provisions.
           
  • Environmental Rating(s): [insert any environmental rating(s) which are applicable or which either party is contractually obliged to obtain], and where any relevant rating organisation rebases, re-designates or otherwise changes the substance of or criteria for a relevant rating (or the number of grades or rankings above or below the relevant rating) or does any other act or thing so that the comparative environmental performance reflected in [ any of] the rating[s] is changed then in respect of [that][the] rating there is deemed substituted for [that][the] rating such new or revised rating[s] as will then reflect and be equivalent to the environmental performance implied by [any environmental rating which is applicable or which either party is contractually obliged to obtain], and any other environmental rating or improved environmental rating in respect of the [Building] obtained by the Landlord from to time and notified to the Tenant. Source Notes:  As referenced in the Standards provision
     
  • EPC: an Energy Performance Certificate and Recommendation Report (as defined in the Energy Performance of Buildings (England and Wales) Regulations 2012);  
    • Drafting note  This is the definition in the MCL which includes in clause 2.4.5 a statement that references to legislation is to that legislation as from time to time amended or replaced 
       
  • EPC Rating: the energy performance rating (as defined in Regulation 11 of the Energy Performance of Buildings (England and Wales) Regulations 2012); shown on an EPC (or any equivalent rating which is substituted for it from time to time) 
     
  • Greenhouse Gas Emissions: Emissions of the greenhouse gases listed at Annex A of the 1998 Kyoto Protocol to The United Nations Framework Convention on Climate Change, as may be amended from time to time each expressed as a total in units of carbon dioxide equivalent (CO2 e) and which can be classified as scope 1, 2 and 3 emissions by the Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 as updated periodically. Source Notes: As referenced in various provisions 
     
  • Green Tariff: a tariff charged for the supply of electricity either from a Green Supplier or from a supplier of electricity that purchases unbundled Renewable Energy Guarantees of Origin (REGOs) to support their green tariff;  
     
  • Green Supplier: 
    • (a) an electricity retailer that purchases 100% Renewable Energy from the relevant electricity market or directly from a Renewable Energy Project Developer (or from both of them); or 
    • (b)a generator of 100% Renewable Energy. Source Notes: As referenced within provisions on Renewable Energy
       
  • Greywater: Waste water generated in the Premises [or the Building] from all sources excluding from toilets. Source Notes: As referenced in the service change provisions
     
  • Improvement in Environmental Performance: includes all or any of the following:
    • a) a reduction in or improved efficiency of energy consumption, including the use of alternative sources of energy with a lower environmental impact; 
    • b) a reduction in or improved efficiency of water consumption; 
    • c) a reduction in Waste generation; 
    • d) an improvement in the rate or efficiency of Waste recycling or reuse of resources; 
    • e) a reduction in Greenhouse Gas Emissions (including those associated with travel to and from the Premises [or the Building]);
    • f) an improvement in the biodiversity present in the Premises [and the Building];
    • g) an improvement in the resilience of the Premises [and the Building] to actual or anticipated effects of climate change;
    • h) a reduction in other adverse environmental impacts 
      • in each case, taking into account [making proper allowance for] any changes in the use or intensity of use of the Premises [and the Building] (and “Improve the Environmental Performance” and 'Improving the Environmental Performance' are construed in like manner). Source Notes:  As referenced in various provisions
         
  • PPA: a power purchase agreement between the [Landlord]/[Tenant] [or any Group Company] and a Renewable Energy Project Developer. Source Notes: As referenced in provisions on Renewable energy
     
  • Real Living Wage: a wage based on an hourly rate that is higher than the minimum national statutory wage and includes the living wage as calculated by the Resolution Foundation and announced by the Living Wage Foundation from time to time and any replacement measure intended to support the principles of the Real Living Wage. Source Notes: As referenced in the preamble to the provisions on Social Impact.
     
  • 100% Renewable Energy: electricity that is sourced from naturally replenishing non-fossil sources including solar, wind, hydropower, tidal power and geothermal. Source Notes: As referenced in provisions on Renewable energy
     
  • Renewable Energy Project: a project, whether in development or in operation, that generates (or will on commencement of operation generate) 100% Renewable Energy. Source Notes: As referenced in provisions on Renewable energy
     
  • Renewable Energy Project Developer: a developer, owner or operator (as the case may be from time to time) of a Renewable Energy Project. Source Notes: As referenced in provisions on Renewable energy
     
  • Salvage: recover, reuse, repurpose, reprocess or recycle (and reference to “Salvaged” or “Salvaging” is construed accordingly). Source Notes: As referenced in the provisions on Recycling of Waste and Yield up
     
  • Salvage Target: a target to Salvage a minimum of [x]% of Waste with the aim of minimising the amount of Waste that is sent to landfill. Source Notes: As referenced in the provisions on Recycling of Waste and Yield up
     
  • Social Impact: (a)economic, environmental and social benefits to the Community which include:
    • i)    local employment opportunities;
    • ii)    apprenticeship and training opportunities;
    • iii)    support for local businesses and suppliers;
    • iv)    local Community engagement and volunteering;
    • v)    engagement with local schools and other educational establishments;
    • vi)    promotion of public transport and other environmentally friendly and cost efficient means of transport; and
    • vii)    promotion of health and wellbeing (including mental health) or
      • (b)the impact of the Premises [and the Building] on the physical, mental and social health of the occupiers
        • Source Notes: As referenced in the Cooperation and Building Management Group provisions 
           
  • Travel Plan: a written plan setting out a scheme to encourage, regulate and promote sustainable travel measures for owners, tenants, occupiers, those working at or visitors to the Premises [and the Building]. Source Notes: As referenced in the Building Management Group provisions
     
  • Waste: any spoil, waste, rubbish, debris, materials or goods which are created by or result from any activity undertaken by the relevant party in the Premises [and the Building]. Source Notes: As referenced in the Recycling of Waste and the Yield Up provisions 
     
  • Waste Policy: a policy prepared by the Landlord for the Building setting out practical details of how Waste can be Salvaged [with the goal of achieving the Salvage Target] including details of shared recycling and other waste facilities [in the Building and], where applicable, neighbouring buildings; Source Notes: As referenced in the Recycling of Waste and the Yield Up provisions. 
    • The words in square brackets are only needed for the dark green versions of the Recycling of Waste and Yield Up provisions as these are the only versions of those clauses which include goal setting  
       
  • Waste Salvage Plan: a plan setting out details of how reinstatement and strip out works are to be undertaken to achieve the Salvage Target which will have regard (without limitation) to the Waste Policy. Source Notes: As referenced in the Yield Up provisions 
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