Looking for a solicitor is like buying a punnet of strawberries from a supermarket’s “reduced” section. Some will be excellent, but there will also be some rotten ones.
Unless you go to a big firm, where some solicitors specialise purely in business leases, most solicitors on the high street will only handle business leases very occasionally, if at all. Even if they are property lawyers, their work is mainly going to be buying and selling flats and houses. When a job involving a business lease comes along, they’ll take it on, because they think they know what they are doing because they’ve seen a business lease before and they passed an exam on it in law school.
The other thing that encourages solicitors to believe they must know what they’re doing with business leases is that business leases tend to look reassuringly familiar. Business lease can be 50 pages long, but they are all laid out in the same way, more or less, regardless of who prepares it.
But the devil is in the detail, as the saying goes. A business lease is full of provisions where there is a landlord-friendly option and a tenant-friendly option. The landlords’ solicitors draft it, and you can bet that they are always going to opt for the landlord-friendly option. What you need a solicitor to do is to recognise where those options have been exercised, and switch them back, or at least amend it to a fair middle ground.
Once a solicitor has taken the job on, he or she will then find that it doesn’t fit seamlessly into their normal flat-buying work flow, so your file will tend to be parked on the corner of the desk.
In the end, the solicitor can make a few arbitrary amendments (usually involving adding “reasonably” to clauses). They can comfort themselves that it looks like a pretty standard document. They may send you a copy and ask you if you are happy with it – thus putting the blame on you if there is anything you ultimately don’t like. Finally, without actually contributing much, and probably missing a lot of important points, they will ask you to sign it.
There is an answer to this. You can check out the solicitor in a number of ways before instructing them.
You can look up the solicitor on the Law Society’s website and you will see that what he or she specialises in, under ‘Areas of practice’. Ideally, it includes ‘Commercial property’.
Second, you can and should ask the solicitor you are thinking of instructing how many business leases he or she has handled for tenants in the last year. If it’s fewer than three, you shouldn’t be interested. Don’t be persuaded if they tell you “it’s all straightforward”. What that means is that it’s straightforward to accept the familiar-looking lease sent to them by the landlords’ solicitors. (Accepting “the lease as drawn” – the lease as drafted by the landlords’ solicitors – is a wonderful way to make some easy money.) The lease as drawn is probably a perfectly good lease – it just won’t be as much in your favour rather than the landlords’ as it should be. It may miss out things which turn out to be crucially important to you somewhere down the line. You may not find out until the last day of the lease when you suddenly discover you are liable for a large refurbishment bill.
Apart from professional competence – the other issue is speed. If you are in a hot market for property, and there’s competition for the type of premises you are taking, you can’t afford to have your solicitor wreck your deal by being so slow that the landlords withdraw from the deal and let the premises to someone else. You won’t believe how common it is for solicitors to just drag things out, totally unreasonably.
It’s best to ask around to see if anyone you know has used a solicitor who specialises in business leases and acts fast.
When it comes to finding a good solicitor – it’s about the solicitor, not the firm. Even if you are told such and such a firm is very good, what that really means is that the speaker had a good experience, but perhaps of another solicitor rather than the one you might use, and perhaps even in a different area of law. If you are going to put reliance on a recommendation, it should be of a specific solicitor who did a good job on a business lease for a tenant client.
Once you’ve instructed a solicitor there is something you can do to make sure that things move along swiftly. Get the solicitor to agree that you will be copied into all emails to the other solicitors. That way you can see how fast – or slowly – your solicitor is dealing with your job. If they won’t, that’s a message for you.
At some point, the solicitor will report to you on the lease. Don’t accept a generic type of comment, “this is the standard form of lease”. Ask them to explain the important provisions in clear and simple English. Also, require them to say specifically that they recommend you entering into this lease.
If your solicitors send you the draft lease and ask for your comments, that is actually a good thing for them to do. There are many things in a lease which are not legally significant, but which may be of great practical significance to you. As one example, there may be a list of restrictions about how you can use the premises, and those are things that you need to read carefully – opening hours, whether you need approval for signs, etc. You can never put all the responsibility on the solicitors. You must check important practical concerns for yourself.
But, of course, you still expect to have proper report from your solicitors on the legal aspects.
Don’t be too respectful of solicitors. They are only people doing a job. This is a vitally important transaction for you, and you are entitled to make sure you get the best service and that your interests are fully protected.
If the letting agents tell you your solicitors are holding things up, take it up with your solicitors. Ask for a copy of the most recent emails between them and the other solicitors. That will soon show you what gaps there have been in communications.
I am painting a bleak picture. But I’m only griping about the annoying minority of solicitors who take on work they can’t really handle properly.
I can’t tell you how many solicitors don’t even give their clients the most basic protective advice – that they should put the lease in a company name to protect themselves from personal liability.
Hopefully, you will find a solicitor who will be looking out for your interests, who knows what he or she is doing, and who will get the job done for you quickly.