Hostages to outrageous fortune

Local authority property lawyers are often conscious - sometimes painfully so - of drafting for contingencies that may never arise. Rights are reserved “just in case”; easements are made explicit even where everyone understands how the building works; boilerplate survives because it has always survived. In the overwhelming majority of cases, nothing untoward ever happens. The difficulty is that titles are not tested on ordinary days. They are tested on sale, redevelopment, dispute - or, most unforgivingly on charge to a lender. At that moment, drafting that once felt prudent can begin to look like unexploded ordnance.

This article considers a recurring class of drafting problems encountered in local authority disposals and transfers - particularly in TR1s and ancillary documents - and explains why they are tolerated, even encouraged, when acting for an authority, but viewed with suspicion or hostility in a secured financing context. The unifying theme is temporal disalignment: drafting that makes perfect sense in the present, but acquires unintended force as context changes.

“What’s Past is Prologue”

When acting for a local authority disposing of part of a building - often a ground floor retained for community or commercial use beneath long residential leases above - the lawyer’s instinct is understandably practical.

Typical concerns include:

• ensuring access for repair and statutory compliance;
• preserving support, shelter and service routes;
• avoiding reliance on implied rights;
• future‑proofing management arrangements.

Against that background, it is unsurprising to see TR1 schedules that include:

• broad rights of entry “for maintenance and repair”;
• service easements referring to conduits “now laid”;
• access rights exercisable “with or without vehicles”;
• easements expressed to be enjoyed “in common with all others having a similar right”.

Each of these formulations has a respectable lineage. Each solves an immediate, tangible problem. And in the everyday life of a building - where ownership remains stable and relationships cooperative - they rarely cause difficulty.

But none of them is drafted with the end of the story in mind. A lender does not lend on the basis of current ownership, current goodwill, or current use. It lends on the basis of what the title would permit in any future lawful scenario. This difference in perspective is crucial. When a lender’s solicitor reviews a title, they ask questions that feel almost wilfully pessimistic: What happens if the leases expire? What happens if the building is redeveloped? What happens if the land is re‑split differently? What happens if the borrower defaults and the asset is sold in parts? Drafting that was never intended to operate in those scenarios is nonetheless assessed as though it might.

Summer’s Lease has all too short a date

A recurring problem is drafting that freezes a right to a historical snapshot while allowing the right itself to endure indefinitely. Classic examples include:

• service rights through conduits “now laid”;
• access rights subject to “currently existing leasehold interests”;
• easements tied to buildings “now erected”.

The intention is conservative: to prevent unilateral expansion. The effect, however, is often the opposite. When conduits are replaced, leases expire, or buildings are demolished, the factual reference point disappears - but the right remains. At best, the easement becomes opaque; at worst, it becomes a point of leverage. In service‑media cases, this can produce dynamics indistinguishable from a ransom strip, where essential replacement works require third‑party consent.

Courts are reluctant to rescue parties from this kind of drafting. “Now” is read literally. Titles are not re‑written to reflect faded intentions. Attempts to solve this problem by suspending rights rather than defining them - e.g. “such rights being exercisable only so long as occupational leases exist” - often fail. Such wording does not extinguish the right; it merely renders it dormant. Dormant easements are precisely what trouble lenders, because they are capable of automatic revival the factual trigger reappears—most obviously on redevelopment when new leases are granted. From a lender’s perspective, a right that can “switch back on” in a completely different built environment is worse than one that is openly broad.

“What you do still betters what is done”

Few phrases illustrate habitual drafting better than: “in common with all others having a similar right”. Often included reflexively to avoid any suggestion of exclusivity, the phrase does more than that. It positively signals that the easement is inherently expandable in beneficiaries and/or, to use different language, ‘scalable’. In a future where the dominant land is subdivided, this language makes it far easier for each new parcel to claim the benefit of the right, without further grant. What began as a landlord‑focused access mechanism can re‑emerge decades later as a cross‑unit easement burdening a residential scheme. Non‑exclusivity can be achieved far more precisely by preserving the servient owner’s retained use, without inviting an indeterminate class of beneficiaries.

How far that little candle throws its beams

Loose or permissive arrangements do not merely cause interpretive trouble; they can generate new proprietary rights. Long‑standing informal access, tolerated because “everyone knows how the building works”, can mature into prescriptive easements - binding successors and lenders alike. In that sense, ambiguity is not neutral. It is fertile. This is another reason lenders are sceptical of drafting that relies on practice rather than precision.

“This time is out of joint”

It is tempting to frame these issues as over‑lawyering or private‑practice fussiness. That would be a mistake. The problem is not incompetence; it is the mismatch between present purpose and future risk. The same clause can be perfectly rational in one frame and deeply problematic in the other. Local authority lawyers draft to make assets function. Lenders read titles to survive default. Both are rational. The friction lies in time. The recurring lesson is this: do not let traditional drafting phrases long-dead rule you from the grave. That does not always mean more drafting. Sometimes it means less. Sometimes it means deciding consciously not to reserve a right, and accepting reliance on lease machinery or statutory powers. Where rights are reserved, they should be:

• purpose‑defined, not merely controlled;
• function‑based, not historically frozen;
• closed as to beneficiary class;
• incapable of independent afterlife.

These are not academic niceties (well, they are not just that!). They are the difference between a title that passes quietly through refinancing and one that stalls, surprises, or devalues an asset years after the original transaction. Property lawyers, like their more glamorous congener, the probate lawyer, do not draft for the 99.9%. They draft for the 0.1% - and for the lender who will not take that risk. Unfortunate. Outrageous. But such is the tide in the affairs of lawyers.

Daniel Andersson is a Property Solicitor at Tandridge District Council.