Can a drafting error invalidate a contracting out order?

In Newham LBC -v- Thomas-Van Staden the Court of Appeal considered whether a drafting error contained in the Lease was sufficient to render the contracting out of that Lease from the Landlord and Tenant Act 1954 ineffective.

The Landlord had granted a Lease for a term commencing from and including 1 January 2003 to 28 September 2004. However the Lease also included the following words to extend the meaning of the term: - 

            "hereinafter called "the term" which expression shall include any period of holding over or extension of it whether by statute or at common law or by agreement".

The Lease was contracted out of the provisions of the Landlord and Tenant Act 1954 by order of the Court.

The issue before the Court was whether, as the term of the Lease had been defined to include an uncertain period of holding over, it was not for a term of years certain, such that the contracting out order was void.

On the basis that it is only in relation to a term of years certain that the parties to a Lease are able to validly agree to contract-out, the Court found that the contracting out order was of no effect. Therefore the Lease fell within the Landlord and Tenant Act 1954. 

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25.03.2009