Déjà vu All Over Again. How Our Documents Are Written Or Miswritten

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We think we’ve found an example that will illustrate one of our long time contentions – we need to skeptically re-read our documents and ask “why” with every line. We need to ask: “Why did we write that? What does it add to the document?” It might be safe to skim right over the “gender” clause, but equally “humdrum, boring” sentences and clauses really need attention.

Here are some provisions from an otherwise uninteresting retail lease. They are discussed in a June 15, 2020 court decision that can be seen by clicking: HERE.

b. Lease Commencement Date. The term of this Lease shall be for a period of 36 months and shall commence on July 1, 2016 or such earlier or later date as provided in Section 3 (the “Commencement Date”).

c. Lease Termination Date. The term of this Lease shall expire at midnight on May 31, 2019 or such earlier or later date as provided in Section 3 (the “Termination Date”).

So, does the lease’s term end on June 30, 2019, or on May 31, 2019? To get a definitive answer, the parties to the lease with these two adjacent provisions had to go to a court of appeals. Not cheap. Not fast.

Why didn’t the lease simply say:

Lease Term. The term of this Lease (“Lease Term”) begins on July 1, 2016 (“Commencement Date”) and ends at the very end of the day of May 31, 2019 or such earlier or later date as provided in Section 3 (“Termination Date”).

We’ll take a guess. The landlord used a “Commercial Brokers Association” lease form and it invited the landlord to fill in some blanks. Here’s the relevant text from that form:

b. Lease Commencement Date. The term of this Lease shall be for a period of ___________ months and shall commence on ___________ or such earlier or later date as provided in Section 3 (the “Commencement Date”).

c. Lease Termination Date. The term of this Lease shall expire at midnight on ________________ or  such  earlier  or  later  date  as  provided  in  Section  3  (the  “Termination  Date”).  Tenant shall have no right or option to extend this Lease, unless otherwise set forth in a rider attached to this Lease (e.g., Option to Extend Rider, CBA Form OR).

Yes, that must be what happened. What we have is an often-used lease form, one that presumably has been carefully crafted and vetted. Yet, we still have the same question: “Why does it invite conflict as to the lease’s expiration date?”

Now, the appellate court reached into its toolbox of agreement “interpretation” or “construction” rules and pulled out the one that says where there is a seeming conflict between a general provision and a specific one, the specific one will control. This is a conventional way of avoiding ambiguities. After all, a true “ambiguity” is one where both choices are valid. It is “open to more than one interpretation.” In contrast, when something is “vague,” it is “of uncertain, indefinite, or unclear character or meaning.”

Confronted with the seemingly conflicting lease provisions, the appellate court ruled that May 31, 2019 was more specific. Thus, that was the date upon which the lease expired. We agree that the May date was more specific in that it took no arithmetic to figure it out. But, was it really more specific? After all, 36 months after July 1, 2016 is pretty specific. It applies only to the expiration date and requires no outside information.

Assuming that the court was correct and not just math-lazy when it ruled for the May 31 date, then what should the court have done with another rule of construction or interpretation? The rule we’re thinking about is that courts seek to give meaning to every statement. So, if the second clause was used to establish the May 31 date, what was the meaning or purpose of the 36 month period in the first clause? Do you just ignore it?

It would be fair for any reader to ask us, “Why are you wasting my reading time with such a triviality?” Yes, our example is a triviality. It addresses a boring, but common, drafting approach. It is even part of a commonly used form. But the triviality of this part of that lease’s language is just the point. How many of us have ever asked ourselves why leases commit this same error or similarly trivial ones? These clauses are boring, yet they can do damage. The legal dispute over what Ruminations readily calls an error cost time and money, not to mention uncertainty.

Today’s take-away is that it behooves every one of use to critically tear our forms apart, asking “why” over and over. Why is this here? What does it mean? Is it needed? Does it use terminology and phrasing that matches every other sentence or clause? This isn’t a one or two day job, but it needs to be done. It isn’t a “cost.” It is an investment. It can help avoid wasteful disputes and lawsuits. It helps us understand our own forms. It informs us when we examine proposed agreements.

We’re not finished for today. When we looked at the lease form’s text, we noted its use of the term, “midnight.”

We agree that noon on May 31 is part of May 31. But is midnight part of May 31? If it is, does it fall at the beginning of that day or at its end? Ruminations has convinced itself that “midnight” is not part of any day, as is “noon.” It is the dividing point between two days. That’s why we don’t use “midnight” when we mean: “at the very end of” [May 31, 2019]. We’re not alone. More authoritative sources than Ruminations ponder this question. Look them up yourself. Even if you find one that reinforces your preconceived notion, are you so sure that a court will agree? Why have the fight?

Now, with the extra time we’ve left for our readers, start reviewing your forms.

[Over the about 10 years that we’ve been doing this “thing,” we’ve been fortunate not to have encountered any “technical” glitches like what we experienced last week. Our hosting service had an issue with the service but worked through the issue to get us back to where we started. We are thankful for its efforts and for our loyal reader’s patience and understanding. If, however, you have encountered any problems our site might be generating, please email imeislik@meislik.com with information about what you have encountered.]



  1. Steve Cross says

    Excellent post, Ira. Without knowing any more about the negotiated terms, my sense is that there was either a fixturization period or early occupancy (at no charge) period, and the July 1, 2016 date was the outside target date for the lease term to commence.

    • Alan Betus says

      It also wouldn’t surprise me that someone used their “fingers and toes” to count out thirty-six and simply made a mistake. I am amazed how many times I see simple math errors in a lease or deal sheet. For example, when saying that a kickout measuring period is the 5th year (expressed in months) the document reflects 48th through 60th month (when it should be 49 – 60). Unfortunately, it’s very easy for a mistake like this to be made while drafting and just as easy when reviewing or proofing a document.

  2. For purposes of defining the Expiration Date of a Lease Term, “11:59 P.M.” is much clearer than “midnight”, and avoids the obvious confusion surrounding the meaning of “midnight”.

    • Richard Belthoff says

      But if you use 11:59 pm on July 31, and then you renew on Aug 1, isn’t there a one minute gap in the term? To be careful, if the lease uses 11:59 pm, I start the next term at 11:59 pm on July 31. However, maybe it’s only a split second gap as I was reading an article the other day about whether or not something is late if submitted at 5:00:15 when 5 pm is the deadline because technically 5:00 pm lasts until 5:01 (but who wants to get into all that argument when trying to interpret a lease).

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