Climate clause

Green Lease Clauses for Irish Commercial Leases: Incorporating Circular Economy and Sustainability Principles into a Service Charge Regime, Landlord’s Regulations and Landlord’s Works

Amélie & Lauri’s Clause

Clauses for Irish commercial leases incorporating circular economy and sustainability principles into a service charge regime, landlord’s regulations and landlord’s works

This is a net zero clause

This clause aligns with Paris Agreement goals, Race to Zero requirements and the Oxford Principles for Net Zero Aligned Carbon Offsetting. For tools and support to use this clause, use our toolkit or join one of our events.

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Why use this?

A green lease can do more than reduce a building’s carbon footprint, running costs and futureproof owners/occupiers against the transition risk of incoming regulation. It can also improve a business’ reputation in the market, command higher rent or sale prices and attract talent drawn by climate-conscious values.

Disclaimer - please read

The clauses on this website have been prepared in good faith on a pro bono basis and are free to download and use. The clauses have been drafted and edited by a variety of lawyers and, as such, the approaches to drafting may not conform to any particular drafting norms. We acknowledge this as a consequence of the collaborative drafting process.

The clauses on this website are provided on an ‘as is’ basis and without any representation or warranty as to accuracy or that the clauses will achieve the relevant climate goal or any other outcome.

The clauses on this website do not comprise, constitute or provide personal, specific or individual recommendations or advice of any kind, and do not contain legal or financial advice. The clauses are precedents for legal professionals to use, amend and negotiate using their professional skill and judgement and at their own risk.

While care has been taken in the drafting of these clauses, neither The Chancery Lane Project nor any of its contributors owe a duty of care to any party in relation to their preparation and do not accept any liability for any errors or omissions, nor for any loss incurred by any person relying on or using these clauses or any other person. Users should use their own professional judgement in the application of these clauses to any particular circumstance or jurisdiction or seek independent legal advice.

The clause

Additional definitions 

BER shall have the meaning set out in the EPB Regulations and all references to BER shall mean any BER in respect of the [Demised Premises/ [and/or the] Building].

BREEAM means Building Research Establishment Environmental Assessment Method, which is an international environmental assessment method and building rating system.

BREEAM Certification means the BREEAM certification [obtained/ to be obtained] in respect of [the Demised Premises/ [and]/ the Building] [being a[n] [Acceptable/ Pass/ Good/ Very Good/ Excellent/ Outstanding] rating].

Certification means [LEED Certification/ BREEAM Certification*] [and/or any other accredited sustainability or green building rating in place from time to time in respect of the [Demised Premises/ [and/or the] Building]].**

* [Drafting note: Insert relevant certification. Consider what parts of the Demised Premises and/or the Building are certified (e.g. shell and core or fit-out), and tailor relevant clauses accordingly.]

** [Drafting note: The words in square brackets are intended to futureproof the Lease, but may give rise to future cost or obligations which are unquantifiable at the date of the Lease. It will be a matter for negotiation in each case whether to include this optional wording.]

Efficiency Objective means that, in relation to the occupation, operation and use of the [Demised Premises/ [and/or the] Building], the parties will work together to:

(a) maximise energy efficiency in the [Demised Premises/ [and/or] the Building];

(b) achieve the sustainability performance targets of the [Landlord’s]/[Tenant’s] sustainability-linked loan;

(c) reduce the GHG Emissions associated with the [Demised Premises/ [and/or the] Building] [to help the parties achieve their Net Zero Targets];

(d) Offset any Residual Emissions related to the [Demised Premises/ [and/or the] Building];

(e) use sustainable materials and avoid the use of materials that increase the Embodied Carbon;

(f) reuse and recycle materials to ensure that they are salvaged or otherwise saved from landfill;

(g) adopt environmentally friendly working methods, including minimising energy use through plant and site services;

(h) protect and enhance existing ecological features on site;

(i) minimise air (dust and fumes) and noise pollution;

(j) minimise water use;

(k) utilise local suppliers; and

(l) promote green travel to and from the Demised Premises (including walking, cycling or using public transport).

[Drafting note: The definition of Efficiency Objective gives a menu of objectives which should be considered with the benefit of appropriate technical advice, bearing in mind the nature of the Building and the parties’ objectives and sustainability targets. These clauses do not set out how the Efficiency Objective is to be measured. The parties may wish to consider agreeing targets or performance metrics but this will generally be a separate matter to be dealt with outside the Lease.]

Embodied Carbon means:

(a) in relation to building materials, the GHG Emissions that occur through their extraction, manufacture and transportation; and

(b) in relation to the [Demised Premises/ [and/or the] Building], the GHG Emissions that occur when it is built, repaired, renovated, deconstructed and disposed of.

Environmental Audit means an evaluation intended to identify compliance with environmental obligations in this Lease. 

Environmental Consultant means an [energy/ environmental/ sustainability] expert or consultant appointed by the Landlord in connection with:

(a) obtaining, maintaining and/or renewing the Certification and/or such other accredited sustainability or green building rating certificate and/or BER Certificate in respect of the [Demised Premises/ [and/or the] Building];

(b) assessing the effect (whether potential or actual) of the Tenant’s alterations to the Demised Premises (whether proposed or otherwise) on the Certification, Environmental Performance and/or the BER of the [Demised Premises/ [and/or the] Building] [and/or whether such alterations would be contrary to the Efficiency Objective/ the objectives set out in the Environmental Performance Plan]; 

(c) considering or assessing the Tenant’s Reports; and/or

(d) assessing compliance by the Tenant with the Green Clauses.

Environmental Laws means all Applicable Laws [Drafting note: It is assumed that this is a defined term in the Lease] concerning environmental matters, control and prevention of pollution and/or the protection, preservation or improvement of the environment.

Environmental Performance means all or any of the following arising from the occupation, operation or use of the [Demised Premises/ [and/or the] Building]: 

(a) [achieving the Tenant’s [or Landlord’s] Net Zero Target;]

(b) energy consumption;

(c) water consumption and discharge;

(d) waste generation and management (including waste recycling and reuse of resources);

(e) generation and/or emission of Greenhouse Gases; and/or

(f) other adverse environmental impacts.

Environmental Performance Data means data relating to the Environmental Performance of the [Demised Premises/ [and/or the] Building] [and any other information reasonably required by the Landlord to monitor energy and resource consumption for the purposes expressed in clause [insert clause number for access, data sharing and metering].

Environmental Performance Plan* means the document or documents [attached to this Lease at Appendix [●]]/[agreed pursuant to clause [insert clause number for environmental performance plan (where plan not yet in place)] and any updated document or replacement document [as may be notified to the Tenant in writing/ agreed between the Landlord and Tenant] containing the energy efficiency strategy and proposed Improvement in Environmental Performance measures and targets for the [Demised Premises/ [and/or the] Building]. [Drafting note: In a multi-tenanted building, it should be clear whether the plan relates just to the Demised Premises or to the entire Building and, if the latter, what impact that has on the Demised Premises.]

* [Drafting note: In a new multi-tenanted building, the Landlord will ideally prepare the Environmental Performance Plan prior to granting any leases. Any existing Environmental Performance Plan should be produced at Heads of Terms stage and appended to the Lease to ensure the parties are aligned on approach and targets and potential future works and upgrades and liability for costs of same. In other cases, the Landlord may wish to collaborate with the Tenant to formulate and agree an Environmental Performance Plan. Odhran’s Clause (Green Lease Clauses for Irish Commercial Leases: Promoting Co-operation Between Landlords and Tenants Concerning the Environmental Performance of Buildings) contains alternative clauses for each of these circumstances and the definition of Environmental Performance Plan should be adapted to match the clause selected for each building.]

EPB Regulations means the European Union (Energy Performance of Buildings) Regulations 2012 (S.I. 243/2012).

GHG Emissions means emissions of GHGs from all sources, categorised as scope 1, 2 and 3 emissions by The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 as updated periodically. [Drafting note: Scope 1, 2 and 3 emissions are defined on page 27 of the GHG Protocol.]

Green Clauses means Clauses [insert relevant clause and subclause numbers]. 

Greenhouse Gases (GHGs) means the gases that trap thermal radiation in the earth’s atmosphere specified by the United Nations Framework Convention on Climate Change (UNFCCC) in Annex A to the Kyoto Protocol as updated periodically.

GRESB means the Environmental, Social and Governance (ESG) benchmark for real estate and infrastructure investments across the world, formerly known as the Global Real Estate Sustainability Benchmark.

Improvement in Environmental Performance includes all or any of the following:

(a) reduction in or improved efficiency of energy consumption, including selection of alternative sources of energy with a lower environmental impact;

(b) reduction in generation and/or emission of GHGs;

(c) reduction in or improved efficiency of water consumption or discharge;

(d) reduction in waste generation;

(e) improvement in the rate or efficiency of waste recycling or reuse of resources; and

(f) reduction of other adverse environmental impacts,

in each case, taking into account any changes in the use or intensity of use of the [Demised Premises/ [and/or the] Building] (and ‘improve the Environmental Performance’ shall be construed in a like manner).

[Drafting note: These clauses do not set out how Improvement in Environmental Performance is to be measured. The parties may wish to consider agreeing targets or performance metrics but this will typically be a separate matter to be dealt with outside the Lease.]

Landlord Access Protocol means the protocol to be observed by the Landlord when entering the Demised Premises for the purposes set out in clauses [insert clause numbers for access, data sharing and metering and extending the landlord’s rights of access and to do works] and attached in Appendix [●]. 

[Drafting note: The Landlord Access Protocol can contain parameters around entry such as: 

  • reasonable prior notice [in writing] to be given by the Landlord to the Tenant in advance of such proposed entry;
  • the installation of metering/ equipment not adversely affecting the Tenant’s beneficial use and occupation of the Demised Premises [to any material extent]; and
  • the Landlord making good, at its own expense, promptly and in a good and workmanlike manner, any damage to the Demised Premises caused by the carrying out of such works.

The above can be incorporated into any general landlord access protocol in the Lease.]

LEED means Leadership in Energy and Environmental Design which is an international green building rating programme that recognises best-in-class building strategies and practices in accordance with the guidelines of the U.S. Green Building Council.

LEED Certification means the LEED certification [obtained/ to be obtained] in respect of [the Demised Premises/ [and] the Building], being a LEED [Platinum/ Gold/ Silver/ Certified] rating, [LEED BD+C: Core and Shell/ LEED BD+C: New Construction/ LEED O+M: Existing Buildings/ LEED ID+C: Commercial Interiors] [LEED v4.1]. [Drafting note: LEED v4.1 is the current version (as of January 2023). The applicable rating and version should be inserted.]

Materials means: 

(a) Reused Materials or Reclaimed Materials but where these are not available or appropriate then;

(b) Sustainable Materials, but where these are not available or appropriate then; 

(c) Recycled Materials, but where these are not available or appropriate then; 

(d) Recyclable Materials, but where these are not available or appropriate then; 

(e) materials or products.

Net Zero Target means a target to reduce and remove GHG Emissions, including by offsetting Residual Emissions, to achieve a balance between the [Landlord] [and Tenant]’s sources and sinks of GHGs by [2050/ insert specific date before 2050]][, which aligns with the goals of the Paris Agreement].

Offset means buying carbon credits from a project:

(a) that has been verified by [insert name of voluntary standard] or the UNFCCC clean development mechanism [or successor UNFCCC mechanism];

(b) where the emissions of GHGs avoided, reduced or removed by the project are additional;

(c) [that prioritises removing GHGs from the atmosphere rather than avoiding or reducing third party emissions of GHGs;]

(d) that, for GHG removals, uses storage methods with a low risk of reversal over millennia; and

(e) that takes account of a just transition and addresses wider social and ecological goals.

Original Rating means the Certification and/or BER in respect of the [Demised Premises/ [and/or the] Building] existing at the [Term Commencement Date/ Rent Commencement Date].

Paris Agreement means a legally binding international treaty on climate change adopted by 196 nations and territories at COP21 in Paris on 12 December 2015 and entered into force on 4 November 2016.

Race to Zero means the UN-backed global campaign rallying non-state actors – including companies, cities, regions, financial and educational institutions – to take rigorous and immediate action to halve global emissions by 2030 and deliver a healthier, fairer zero carbon world in time.

Reclaimed Materials means materials that have been removed from another building or site, which can be reused in the [Demised Premises/ [and/or the] Building] without substantial modification.

Recyclable Materials means materials which can go through a recovery operation by which waste materials are reprocessed into products, materials or substances whether for their original or other purposes.

Recycled Materials means materials which, through a recovery operation, have been reprocessed into products, materials or substances whether for their original or other purposes.

Residual Emissions means the GHG Emissions that are emitted after all reasonable efforts have been made by the [Landlord] [and Tenant] to reduce GHG Emissions.

Reused Materials means materials, products or components that are not waste and are used again for the same purpose for which they were conceived.

Sustainable Materials means products or materials:

(a) which are extracted, produced and made in a way that minimises the Embodied Carbon; and

(b) which are extracted, produced and made without depleting non-renewable resources and without disrupting the established steady-state equilibrium of the environment and key natural resource systems; and

(c) which are recyclable or reusable.

Service Charge Code means the Society of Chartered Surveyors Ireland and the Royal Institution of Chartered Surveyors Code of Practice on Service Charges in Commercial Property, as may be amended from time to time.

Tenant Access Protocol means the protocol to be observed by the Tenant when entering the [Common Areas/ Retained Parts] for the purposes set out in clause [insert clause number for tenant rights of entry/ to carry out remedial works/ compliance with notices] and attached in Appendix [●].

[Drafting note: The Tenant Access Protocol can contain parameters around entry such as: 

  • reasonable prior notice [in writing] to be given by the Tenant to the Landlord/ Management Company/ Managing Agent in advance of such proposed entry;
  • the installation of metering/ equipment not adversely affecting the Landlord’s/ Management Company’s/ other tenants’ beneficial use of the [Common Areas/ Retained Parts] [to any material extent]; and
  • the Tenant making good, at its own expense, promptly and in a good and workmanlike manner, any damage to the [Common Areas/ Retained Parts] caused by the carrying out of such works.

The above can be incorporated into any general tenant access protocol in the Lease.]

[Drafting note: Capitalised terms relate to either a defined term in these clauses or a defined term in the main lease that these clauses are designed to be inserted into.]

 

Additional clauses

1. Landlord regulations 

The Landlord may from time to time make [and vary] such [reasonable] regulations as the Landlord shall think fit [in accordance with the principles of good estate management] [and the Service Charge Code] [Drafting note: Client instruction will be required to confirm whether the Service Charge Code is to apply] for:

1.1 … [Drafting note: These provisions can be integrated into any landlord regulations clause]

1.2 [sustainability, including waste management, energy use (lighting, heating and appliances), air circulation, water use, use of products (for cleaning or otherwise) and selection of materials and furniture for use in the Demised Premises and/or the Building]; 

1.3 Environmental Performance; and/or

1.4 implementing the [Environmental Performance Plan/ Efficiency Objective]. [Drafting note: This subclause may be included where an Environmental Performance Plan or Efficiency Objective applies. It can be amended to refer to other environmental guidelines, principles or systems, as applicable.]

2. Compliance with regulations

[Drafting note: This clause requires the Tenant to comply with rules and regulations relating to sustainability, without specifying the regulations to apply.]

The Tenant shall comply with (and shall procure compliance by any under-tenant or occupier with) all [reasonable] rules and regulations concerning the management, operation and security of the Demised Premises notified to the Tenant from time to time, as though the rules and regulations were set out in full in this Lease, including those relating to [sustainability, including waste management, energy use (lighting, heating and appliances), air circulation, water use, use of products (for cleaning or otherwise) and selection of materials and furniture for use in the Demised Premises and/or the Building]/ [the Efficiency Objective].

3. Service charge

 …  [Drafting note: These provisions can be integrated into the Service Charge provisions.]

3.1 [] [Drafting note: Insert the relevant standard of accreditation and/or the relevant guidelines] – [Management Company and] Landlord’s rights 

[Subject to and in accordance with the principles of good estate management] the Landlord [and/or the Management Company] will be entitled, in [its/ their] absolute discretion to maintain the Building to a standard of [●] [Drafting note: Insert the relevant standard of accreditation, such as LEED Platinum/ Gold/ Silver/ Certified, BREEAM etc.] rated office accommodation in the [Dublin] marketplace and/or to a standard compliant and commensurate with [●] [Drafting note: Insert any relevant guidelines such as GRESB, etc.] and[, subject to the provisions of the Service Charge Code,] [Drafting note: Client instruction will be required to confirm whether the Service Charge Code is to apply] will be entitled to consider this standard and/or these guidelines when deciding on matters relating to the provision, operation, maintenance, repair, replacement, renewal, cleansing, decoration and amendment of any matters falling within the scope of the Services as outlined in Schedule [●] [Drafting note: This Schedule is not included in these clauses] of this Lease. 

3.2 Delivery of Services

Subject to payment by the Tenant of the Service Charge as provided for in clause [insert clause number for service charge payment] and to the rights granted by clause [insert clause number(s) for landlord’s right to carry out works to the Retained Parts or Demised Premises], the Landlord [and/or the Management Company] agree[s] where practicable to use [reasonable] endeavours [if and] when delivering the Services to: 

(a) [comply with the Service Charge Code;] [Drafting note: Client instruction will be required to confirm whether the Service Charge Code is to apply]

(b) comply with the [Environmental Performance Plan/ Efficiency Objective];  

(c) comply with all Environmental Laws;

(d) [maintain and share the Environmental Performance Data in respect of the Building;] [Drafting note: Include where no other data sharing clause in the Lease] and

(e) use Materials.

3.3 Service Providers

[Subject to and in accordance with the principles of good estate management] [Drafting note: Consider inserting if acting for the Tenant] the Landlord [and/or the Management Company] shall use [reasonable] endeavours to ensure that all third party service providers in relation to the [Demised Premises/ Building] comply with [●] [Drafting note: Insert the relevant standard of accreditation such as LEED Platinum/ Gold/ Silver/ Certified, or BREEAM etc.] standards and/or [●] [Drafting note: Insert the relevant guidelines such as GRESB, etc.]. 

3.4 Service Charge Items

[Drafting note: These are sample Service Charge items only and, depending on the overall format/ style of the Lease, can be moved into the relevant schedule which lists all the Services being provided under the Service Charge provisions. If acting for the Tenant, you may wish to request: (i) a Service Charge budget itemising ‘green’ Services and identifying savings and/or costs which are over and above the norm; and/or (ii) information on the balance of the sinking fund, if any.]

(a) The costs necessary to retain and maintain the Certification and/or the BER (excluding any ratings specific to any Lettable Areas); 

[Drafting note: This clause (a) requires the Landlord to retain and maintain the Certification and the BER as part of the provision of the Services. However, this may not constitute an absolute requirement if the Service Charge provisions contain an element of landlord discretion in the provision of the Services. If an absolute landlord obligation to retain and maintain the Certification and the BER is required, this might more appropriately be achieved by a positive covenant on the Landlord’s part.]

(b) Improving, providing, maintaining, repairing, operating, inspecting, servicing, overhauling, cleaning, lighting and (as and when necessary) renewing or replacing any initiatives, services, equipment which in the [reasonable] opinion of the Landlord will be in accordance with the [Efficiency Objective/ Environmental Performance Plan] for the Building and will benefit tenants of the Building; 

(c) The carrying out of any work for the improvement, maintenance or sustainability of the [Common Areas/ Retained Parts], including (but not limited to) for Improvement in Environmental Performance of the [Common Areas/ Retained Parts];

(d) [●] [Drafting note: Insert any building-specific green services such as solar panels or rainwater harvesting].

3.5 Service Charge Exclusions

There shall be excluded from any element of the Service Charge any costs incurred by the Landlord or the Management Company in relation to: 

(a) … [Drafting note: These provisions can be integrated into any Service Charge exclusion clauses];

(b) all costs of whatever description (whether by way of capital expenditure or otherwise) incurred in connection with obtaining the Original Rating and/or any enhanced Certification and/or enhanced BER, it being acknowledged that the Landlord shall bear the costs of obtaining the Original Rating and/or any enhanced Certification of the Building and/or enhanced BER (excluding in each case any ratings specific to Lettable Areas) provided that the costs necessary to retain and maintain the Certification and/or the BER of the Building (excluding in each case any ratings specific to Lettable Areas) shall form part of the Services.

4. Landlord’s works to Retained Parts 

4.1 The Landlord shall be entitled to carry out works [at the Landlord’s expense] [Drafting note: Alternatively, such works may be included in the schedule of Services so that the costs of same are included in the Service Charge] to the [Building/ Common Areas/ Retained Parts] (excluding any elements the subject of existing leases or currently occupied by a party other than the Landlord) and the plant and equipment serving the Building [including, for the avoidance of doubt, the Demised Premises where not exclusively serving the Demised Premises], which the Landlord[, acting reasonably,] determines are necessary to maintain and/or improve the Environmental Performance of the Building, Common Areas, Retained Parts and/or the Demised Premises [and/or] the plant and equipment serving the Building [in compliance with the Landlord’s obligations in that regard] [having regard to the Environmental Performance Plan/ the Certification/ the Efficiency Objective] [Drafting note: Insert reference to other guidelines or framework as may be agreed between the Landlord and Tenant] notwithstanding any [temporary] interruption in the provision of the Services by or on behalf of the Landlord [provided always that the Landlord shall use [reasonable] endeavours to minimise any disruption to the Tenant’s use and enjoyment of the Demised Premises and any interference to the provision of the Services].

4.2 In carrying out works to the [Building/ Common Areas/ Retained Parts] (excluding any elements the subject of existing leases or currently occupied by a party other than the Landlord) and the plant and equipment serving the Building [including, for the avoidance of doubt, the Demised Premises where not exclusively serving the Demised Premises], the Landlord:  

(a) shall comply with the [Environmental Performance Plan/ Efficiency Objective];  

(b) shall comply with all Environmental Laws; and

(c) agrees where practicable to use [reasonable] endeavours to use Materials. [Drafting note: The inclusion of such an innovative landlord obligation would require careful consideration. Landlords may wish to discuss its inclusion and the hierarchy of materials set out in the definition of Materials with their technical advisors.]

5. Landlord’s right of access to maintain/ improve environmental performance

5.1 The Tenant agrees to permit the Landlord and/or its agents and all persons authorised by the Landlord at all reasonable times on giving reasonable prior [written] notice to the Tenant (save in cases of emergency where no notice is required) to enter and remain on the Demised Premises (with or without workmen, contractors, materials and equipment) to[, at the Landlord’s expense] maintain and/or improve the Environmental Performance of the [Demised Premises/ [and/or the] Building] [provided that such works cause as little damage as possible to the Demised Premises and, when complete, do not adversely affect the Tenant’s beneficial use, enjoyment and occupation of the Demised Premises]. [Drafting note: This might be appropriate in a short-term lease where the tenant may not otherwise have covenanted to carry out works to maintain or improve the Environmental Performance, or committed to an Environmental Performance Plan, or where the Landlord desires to carry out works not contemplated by, or over and above, any agreed plan or Tenant covenants.]

5.2 In carrying out works to the Demised Premises, the Landlord:  

(a) shall comply with the [Environmental Performance Plan/ Efficiency Objective];  

(b) shall comply with all Environmental Laws; and

(c) agrees where practicable to use [reasonable] endeavours to use Materials.  

6. Extending the landlord’s rights of access and to do works

[Drafting note: The Landlord’s rights of access to, and to carry out works within, the Demised Premises are generally limited and may not permit entry to carry out improvements which improve the Environmental Performance of the Building. The Lease should be checked to see whether it already contains sufficient rights to enable the Landlord to review and measure in this way, or to carry out such improvements. These rights may appear in the reservations to the Landlord, in the Tenant’s covenants to permit access and/or in the Landlord’s covenants to provide Services. If not, then the first part of this clause should be used to confer the necessary rights.]

6.1 [Subject to the Landlord Access Protocol, the] [The] Tenant agrees to permit the Landlord and/or its agents and all persons authorised by the Landlord [at all reasonable times on giving reasonable prior written notice to the Tenant (save in cases of emergency where no notice is required) [Drafting note: Include where the Lease does not contain a Landlord Access Protocol]] to enter and remain on the Demised Premises (with or without workmen, contractors, materials and equipment) for any of the following purposes:

(a) to carry out an Environmental Audit;

(b) to review and/or measure the Environmental Performance Data relating to the Demised Premises save where up-to-date Environmental Performance Data has already been provided to the Landlord’s [reasonable] satisfaction by the Tenant in accordance with clause [insert clause number for data sharing and reporting], unless such entry is for the purposes of verifying the information provided;

(c) to ascertain whether the Tenant’s obligations under the Green Clauses are being duly observed and performed and to exercise any rights reserved by this Lease; and

(d) where the Tenant is in breach of its obligations under the Green Clauses, and the Tenant has failed to remedy such breach(es) within [twenty (20)] Working Days (or if in the reasonable opinion of the Landlord or the Environmental Consultant there is any emergency, then within such lesser period as may be practicable) of receiving written notification of the breach from the Landlord, to carry out, at the Tenant’s expense, all works which are required by the Landlord[, acting reasonably,] to bring the Demised Premises into compliance with the Tenant’s obligations [and to meet the objectives set out in the Environmental Performance Plan/ to maintain the Certification/ BER] [Drafting note: Insert reference to other guidelines or framework as may be agreed between the Landlord and Tenant] and all [reasonable] expenses thereby properly incurred and vouched (including [reasonable] architects’, surveyors’ and legal fees) together with interest thereon at the Prescribed Rate [Drafting note: It is assumed that this is a defined term in the Lease] from the date of expenditure shall be a debt recoverable from the Tenant by the Landlord and shall be recoverable as rent payable in arrears.

6.2 In carrying out works to the Demised Premises, the Landlord:  

(a) shall comply with the [Environmental Performance Plan/ Efficiency Objective];  

(b) shall comply with all Environmental Laws; and

(c) agrees where practicable to use [reasonable] endeavours to use Materials.  

7. *Restriction on landlord’s right to do works** – absolute prohibition***

The Landlord shall not carry out any works to the Retained Parts or to the plant or equipment [or services [Drafting note: Consider referring to ‘Conduits’ here if it is a defined term in the Lease, and whether the definition is wide enough to capture any green utilities, e.g. solar panels, rain water harvesting etc.]] within and serving the Building which will [or are likely to] [Drafting note: This would give wider scope for works to be prohibited, which may be preferred by a tenant but resisted by a landlord] [materially] adversely affect the Certification, Environmental Performance and/or the BER of the [Demised Premises/ [and/or the] Building] [and/or would be contrary to the Efficiency Objective/ the objectives set out in the Environmental Performance Plan] [Drafting note: Insert reference to other guidelines or framework as may be agreed between the Landlord and Tenant] unless the Landlord[, acting reasonably], deems such works to be necessary in accordance with its obligations and/or covenants under this Lease or any Applicable Laws. 

* [Drafting note: A tenant with significant bargaining power may seek a right to require the Landlord to carry out environmental improvement works to the Building during the Term at the Tenant’s cost (in addition to any environmental works or systems the Tenant may have negotiated into the building specification for the Landlord’s works under any Agreement for Lease). The inclusion of such an innovative Tenant right would require careful consideration by the Landlord including whether the premises being demised is an entire building or part (in which case the Landlord may need to consider the impact of such a tenant right on other leases/ tenants/ service costs) and how any planning application would be managed.]

** [Drafting note: Usually the Landlord will be under no constraints as to the works that it can do to the Common Areas of the Building or to the plant and machinery that serves the Building as a whole (except the practical constraint that the Lease may not permit the Landlord to recharge to the Tenant the costs incurred). Sometimes (particularly if the cost can be recharged) the Tenant will want to prevent the Landlord acting in a way that [materially] prejudices the Environmental Performance or the BER of the Demised Premises or the Building etc. The Landlord may only be prepared to agree to this for particular types of work, or for works over a particular value.]

*** [Drafting note: Consideration could be given to whether a middle ground could be agreed whereby the Landlord could carry out works with the Tenant’s consent, or a further concession by the Tenant whereby the Landlord can do works and agrees to consider, but is not obliged to act upon, or take into account of, suggestions made by the Tenant regarding the works.]

8. Tenant rights of entry/ to carry out remedial works/ compliance with notices

[Drafting note: This optional clause may be inserted where there is a landlord’s obligation to achieve a Certification and/or maintain the Original Rating.]

[Drafting note: These provisions are slightly different to the landlord rights of access in respect of a tenant breach as set out above. A tenant’s right of access and to carry out works on common areas/ retained parts would be an unusual concession by a landlord. The landlord will have the building as a whole to consider and, accordingly, the provisions allow for a longer remediation period (20 Working Days within which to commence carrying out any remedial works as opposed to 20 Working Days to remedy a breach).]

If the Landlord is in breach of its obligation to [achieve the Certification and/or] maintain the Original Rating for [the Building/ Common Areas [and/or]/ any part thereof], the Landlord agrees[, subject to the Tenant Access Protocol,] to:

8.1 permit the Tenant and/or its agents and all persons authorised by the Tenant [at all reasonable times on giving reasonable prior written notice to the Landlord [Drafting note: Include where the Lease does not contain a Tenant Access Protocol]] to enter [the Building/ Common Areas/ Retained Parts] and where required to remain (with or without workmen, contractors, materials and equipment) for the purposes of carrying out an Environmental Audit; and

8.2 execute any repairs or other works identified by the Tenant under clause [8.1] for which the Landlord is liable under the provisions hereof, commencing to do so within [twenty (20)] Working Days of the date of the service of written notice and thereafter proceeding with all due diligence to complete the works and in case the Landlord shall default in so doing it shall be lawful[, subject to the Tenant Access Protocol,] for workmen or others employed by the Tenant [at all reasonable times having given reasonable prior written notice to the Landlord] to enter and remain upon [the Building/ Common Areas/ Retained Parts] and execute such repairs or other works and all [reasonable] expenses thereby properly incurred and vouched (including [reasonable] architects’, surveyors’ and legal fees) together with interest thereon at the Prescribed Rate from the date of expenditure shall be a debt recoverable from the Landlord by the Tenant [and shall be recoverable by offsetting these costs against the rent due].*]**

* [Drafting note: If the Services provided to the Demised Premises do not meet the targets, the Tenant may require the Landlord to carry out actions to ensure compliance with the Original Rating. In default of doing so, this may lead, for example, to the Tenant installing more efficient lighting at the Landlord’s cost. If the Landlord does not pay the relevant costs, the Tenant can offset these costs against the rent due.]

** [Drafting note: It would be unusual for a landlord to permit such rights but they may be granted to a tenant in a strong negotiating position.]

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