Legal and Regulatory Compliance

Question 1

Level 1.

• Can you tell me the different roles a RICS member can undertake during a dilapidations?

Answer 1

1. dilapidatons advisor
2. expert witness
3. ADR

Question 2

1. Can you explain what you did at Wigmore Lane for the dilaps assessment?

Answer 2

• My instruction was on behalf of the tenant
• they were looking to assign their lease over to a new tenant including their dilapidations liability.
• The new tenant had provided a terminal schedule of dilapidations
• They wanted me challenge the costs the other party had established.
• The assignee also stated they were looking for a service charge cap in respect of the landlord’s plant which they deemed to be in poor condition, this was threatening negotiations.
• I carried out a full dilaps assessment - bascially I looked at it as if doing a terminal schedule of dilapidations to ascertain the tenants liabilities, I also reviewed the lease beforehand.
• I comissioned an M and E consultant to review the plant on the floor and also to review trhe landlords plant with their permission and comment.
• If they probe deeper you can mention the landlord plant was chillers and assignee tenant surveyor had done a visual inspection only. On review of maitnenace records by my M and E consultant we were able to reduce their concerns.
  *

Question 3

Can you tell me what rules and srtandards govern a dilpaidations claim?

Answer 3

1. The Civil Procedure Rules (CPR) govern how a claim should be conducted.
2. The Dilapidations Protocol - drafted by RICS and the Property Litigation Association in 2000 as a guide to best practice, and revised in 2006 and 2008

Question 4

What is a Calderbank offer?

Answer 4

• A Calderbank offer (otherwise known as a “Without Prejudice Save as to Costs”) is an offer to settle a dispute, putting the other side on notice that, if the dispute goes before any court and the outcome is less favourable to the other side compared to the Calderbank Offer being made, then the side making the offer is entitled to more of their costs being recovered.
• This is because, if the other side had accepted the offer, then they would have been better off and neither side would have had to spend money taking the matter to court.
• Arose from the Calderbank V Calderbank case 1975 between a husband and wife!
• They are useful because they are completely flexible.
• However, while they can be very persuasive in the eyes of a court when deciding whether someone has litigated unreasonably, they do not bind a court.
• Its effect is that the court is unable to refer to the offer except when dealing with the question of costs at the end of the proceedings
• A Calderbank offer provides greater flexibility than a Part 36 offer because it is not governed by strict court rules.

Question 5

What is a ‘Part 36 Offer’?

Answer 5

• A Part 36 offer is an offer made by either the claimant or the defendant as a tactical step designed to convince the other party to settle the claim early without the matter having to go to Court
• . A Claimant who makes a sensible part 36 offer is putting their opponent under pressure to come to the negotiating table
• The name comes from the Civil Procedure Rules (CPR)
• Made at any time until judgement
• ‘Part 36′ deals with offers made on a ‘without prejudice’ basis, which means any Part 36 offers will not be seen by the Court (if the case gets that far) until after the judgment has been made and an appropriate level of compensation awarded by the Judge.

Question 6

Why would you write ‘without prejudice’ in a dilaps claim corrospondance?

Answer 6

Marking a corrospondance “without prejudice” means that it cannot later be admitted in evidence before a court or employment tribunal without the consent of both parties concerned, should settlement negotiations subsequently break down and the dispute come before the court or tribunal.

Question 7

Can you tell me what legislation affects dilapidations and briefly how?

Answer 7

1. The Law of Property Act 1925
   
   1. section 146 - interim dilaps
2. The Landlord and Tenant Act 1927 and 1954
3. Section 18 - Terminal dilaps (the 1927 act)
4. The Leasehold Property Repairs Act 1938
   
   1. Protects tenants in 7 year+ tenancy with more than 3 years left to run.
5. The Limitation Act 1980
6. statue bars damage claims after 15 years.
7. The Fraud Act 2006
8. The Bribery Act 2010

Question 8

Can you tell me any case law regarding dilapidations?

Answer 8

1. Proudfoot v Hart 1890
2. Principle of “age character and locality’,
3. Which essentially restricts the standard of repair to that appropriate for a property of that nature
4. Jervis v Harris 1996
5. essentially a landlord’s right to enter the property and repair on the tenant’s default, reclaiming the costs (not as per the Leashold (property) Repairs act 1938.
6. Shortlands V Cargil 1995

Section 18 LTA 1921

Shortland was landlord

it was suggested that there could be no loss because the building was alleged to have a negative reversionary value.

However, the court held that there could be even greater negative value as a result of the disrepair.

Valuation A in repair (hypothetical)

and valuation B at present condition.

Proudfoot v hart 1890

Principle of ‘Good tenantable repair’

to keep a house in good tenantable repair the tenants’ obligation is to put and keep the premises in such repair as having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a tenant of the class who would be likely to take it.

E.g. compared a property in grovener square to that of one in spittalfields which in 1890 would have been a startk contrast.

The age of the house must be taken into account, because nobody could reasonably expect that a house 200 years’ old should be in the same condition of repair as a house lately buil

Tiger V Sunlife 2013

LTA 1927

Tenant Tiger had a 35 year lease with landlord sunlife

Tiger argued even if they’d left the premises in good repair, sunlife would still have had to carry out the major refub it did.

Tried to argue under section 18

Judge said diminution in value of the building would have been greater than the cost of the works

landlord won - 1.4 million

Jervis V Harris 1996

Leasehold Property (Repairs) Act 1938

Case confirmed a landlord is entitled to serve a schedule of wants of repair on the tenant and enter the property and carry out the works in default of the tenant doing so

the debt that is then claimed in respect of the cost of the works undertaken by the landlord does not have to be pursued in a manner that complies with the Leasehold Property (Repairs) Act 1938.

Shortlands V Cargil 1995

Section 18 LTA 1921

Shortland was landlord

it was suggested that there could be no loss because the building was alleged to have a negative reversionary value.

However, the court held that there could be even greater negative value as a result of the disrepair.

Valuation A in repair (hypothetical)

and valuation B at present condition.

Proudfoot v hart 1890

Principle of ‘Good tenantable repair’

to keep a house in good tenantable repair the tenants’ obligation is to put and keep the premises in such repair as having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a tenant of the class who would be likely to take it.

E.g. compared a property in grovener square to that of one in spittalfields which in 1890 would have been a startk contrast.

The age of the house must be taken into account, because nobody could reasonably expect that a house 200 years’ old should be in the same condition of repair as a house lately buil

Tiger V Sunlife 2013

LTA 1927

Tenant Tiger had a 35 year lease with landlord sunlife

Tiger argued even if they’d left the premises in good repair, sunlife would still have had to carry out the major refub it did.

Tried to argue under section 18

Judge said diminution in value of the building would have been greater than the cost of the works

landlord won - 1.4 million

Jervis V Harris 1996

Leasehold Property (Repairs) Act 1938

Case confirmed a landlord is entitled to serve a schedule of wants of repair on the tenant and enter the property and carry out the works in default of the tenant doing so

the debt that is then claimed in respect of the cost of the works undertaken by the landlord does not have to be pursued in a manner that complies with the Leasehold Property (Repairs) Act 1938.

Scottish versus BT 1994

Loss of rent (landlord and tenant 1927)

Where a landlord claims loss of rent as a head of damages at the end of the term of the lease, it is ‘an essential prerequisite that it should be demonstrated on the balance of probabilities that the carrying out of those repairs after the end of the term has prevented or will prevent the letting of the premises for that period.’

because the relevant market at the time was so depressed that it was impossible to show that the landlord would have been able to relet the premises to better advantage even if the premises had been delivered up in repair

The decision also suggested that, if a landlord were to give notice to the tenant that it was required to reinstate alterations the tenant might be able to have a reasonable period to stay at the property to enable it to complete the necessary works.

Loss of rent (landlord and tenant 1927)

Where a landlord claims loss of rent as a head of damages at the end of the term of the lease, it is ‘an essential prerequisite that it should be demonstrated on the balance of probabilities that the carrying out of those repairs after the end of the term has prevented or will prevent the letting of the premises for that period.’

because the relevant market at the time was so depressed that it was impossible to show that the landlord would have been able to relet the premises to better advantage even if the premises had been delivered up in repair

The decision also suggested that, if a landlord were to give notice to the tenant that it was required to reinstate alterations the tenant might be able to have a reasonable period to stay at the property to enable it to complete the necessary works.

Question 9

When should a schedule of dilapidations be served and how long after the expiry of the lease?

Answer 9

1. A schedule of dilapidations can be served at any time during a lease
2. Up to twelve years after expiry if the lease is under seal
3. Six years after expiry if the lease is under hand.
4. Some leases do impose other caps on timing of service.
5. There are differences in the type of schedule served depending on the timing in relation to the lease duration.

Question 10

How and when can an interim schedule of dilapidations be served?

Answer 10

An interim schedule of dilaps can be served:

1. FORMALLY
   
   1. as a notice under S146 of the Law of Property Act 1925,​
   2. Via a right of entry clause within the lease
2. INFORMALLY
3. UP TO THE LAST 18 MONTHS OF TENANCY

Question 11

When should a terminal schedule of dilapidations be served?

Answer 11

• In the last 3 years/18 months of the lease.

Question 12

When should a final schedule of dilapidations be served?

Answer 12

• Once the lease has ended
• up to 12 years after lease end if the lease is under seal
• or six years if under hand.

Question 13

What is an Interim Schedule of Dilapidations?

Answer 13

Interim schedules of Dilapidations are:

1. served during the lease term, and can be served at any time from lease commencement.
2. Whilst there is no legal bar to an interim schedule being served in the last 18 months of the lease it is more usual for a schedule at this time to be a terminal one.
3. An interim schedule is not usually costed as the intention is for the party upon which it is served to rectify the breaches of covenant.

Question 14

What is a Terminal Schedule of diapidations?

Answer 14

Terminal Schedules of Dilapidations are

1. Generally served within the last 18 months of the lease
2. They are intended to address all the alleged breaches of the lease, they set out the required works/ remedies.
3. Typically a terminal schedule will include prices, but this may not be the case if the schedule is served a number of months before lease end

Question 15

What is a Final Schedule of dilapidations

Answer 15

Final Schedule of Dilapidations:

1. can only be served after the lease has ended.
2. Under the Limitations Act 1980 an action for damages can be brought up to twelve years after the lease end if the contract was under seal (six if ‘under hand’ i.e. simply signed) though it is rare for this to be the case, as proximity of time can impact significantly on a dilapidations claim.
3. Final schedules are usually in support of a claim for damages and should be priced.

Question 16

What are dilapidations and what is a schedule of dilapidations?

Answer 16

Dilapidations

• refers to breaches of the lease covenants by either landlord or tenant, though mainly the latter, and the process of remedying the breaches.

Schedule of Dilapidations

• This is the formal listing of the alleged breaches of the contract.
• Dilapidations are not intended to profit the landlord. Any claim is merely intended to return the landlord to the same position as if the Tenant had performed their lease obligations.

Question 17

What remedies are available to a landlord for dilapidations?

Answer 17

DURING THE COURSE OF THE LEASE:

1. Specific performance (courts frown upon near end of lease say last 18 months)
2. Court order complelling party to perform duties
3. Apply to the Courts to end the lease under S146 of the Law of Property Act 1925 (can also use fofeiture but courts tend to favour tenant)
4. erved by a landlord who wishes to commence forfeiture proceedings against a leaseholder following a breach of a lease.
5. specify the breach complained of,

importantly if the breach is capable of remedy, require the leaseholder to remedy the breach, and

in any case require the leaseholder to make compensation in money for the breach.

The leaseholder is afforded a reasonable time to remedy the breach if it is capable of remedy following service of the section 146 notice.

6. Jervis v Harris Clause
   
   1. Serve an interim schedule formally under the landlord’s right of repair clause .
   2. If the tenant defaults on the notice enter the premises and undertake works.
   3. Costs may not be recoverable unless specified in the lease.

AFTER THE LEASE

1. ONLY Damages recoverable- tenant cannot be asked to do the works.

Question 18

Why should a terminal schedule not be served under S146 of the Law of Property Act 1925?

Answer 18

Terminal Schedules should not be served under S146, as the tenant cannot forfeit a lease that is about to terminate naturally

Question 19

How would you go about an interim dilapidations claim?

Answer 19

Check the lease for

1. Review the lease
   
   1. Length of the tenancy
   2. How long it has left to run ( to see if the Leasehold Property Repairs Act 1938 (the LPRA) will provide protection)
   3. Look for a Jervis V Harris Clause
2. Check the landlords intentions whether they are looking to do the works (under the Jervis harris clause if present) or for the tenant to carry out the work or for the tenant to do this themselves under specific performance.
3. Look for a schedule of condition

Question 20

How does the Leasehold Property Repairs Act 1938 (the LPRA) protect a tenant?

Answer 20

• With regards interim schedules, for leases over seven years with three or more years until expiry the tenant is entitled to the relief of the Leasehold Property Repairs Act 1938 (the LPRA).
• The LPRA effectively restricts an interim schedule to matters that are essential, wind and weathertight, or so called ‘stitches in time’, where action now will prevent significant future decay and cost.
• This can be bypassed by a jervis versus harris clause in the lease.

Question 21

What is a Jervis V Harris Clause what stage in the lease woud you use it?

Answer 21

‘Jervis and Harris clause’

• A lease clause which provides a landlord’s right to enter the property and repair on the tenant’s default, reclaiming the costs.
• This would be during the lease term (interim schedule).
• These clauses by-pass the protection of the Leasehold Property Repairs Act
• A Landlord must be careful not to interfere with the tenant’s quiet enjoyment of the property, and such clauses are usually operated as a last resort.

Question 22

How would you deal with a terminal schedule of dilaps?

Answer 22

1. Check lease and any ancillary agreements such as LFA
   
   1. d
2. Check for a schedule of condition
3. Check landlord intentions (supercession Sct 18 cap LLTA 1921)

Question 23

Can the tenant return to carry out repairs following expiry of the lease?

Answer 23

• Once a lease has expired the tenant does not have an automatic right to return to the property to undertake works and the Landlord can decide upon the nature and extent of repairs, however this may not necessarily be reflective of the Tenant’s liability
• Access may be agreed with the landlord in order carry out repairs

Question 24

What is Section 18 referring to in terms of dilaps?

Answer 24

Section 18 of the Landlord and tenant act 1927

• places a cap on damages that can be obtained at the end of a lease to stop landlords from profiting from the claim.
• It only relates to matters of repair not reinstatement

There are two limbs:

LIMB 1 DIMINUTION OF VALUE

• The repair costs claimed must not exceed the amount the value of the reversion (the property in repair) is diminished by the tenants act.
• AKA the value lost in the property due to the tenant’s breach.
• A Diminution valuation is carried out by a specliast valuer and seeks to ascertain this value lost due to the tenant’s breach.

LIMB 2 SUPERCESSION

No repair costs shall be recovered if following the termination of the tenancy the building will be demoolished or structural alterations which would render the repairs valueless.

Question 25

What club are party wall surveyors involved in ?

Answer 25

Pyramus and Thisbe Club

which is dedicated to the promotion of party wall education and understanding. they can be found there or on the find a surveyor service on the RICS website.

Question 26

What is the Party Wall etc. Act 1996 and what does the etc mean?

Answer 26

Party Wall etc. Act 1996

It is enabling legilsation which provides a framework to help prevent and resolve disputes between building owner and adjoining owners in relation to building works involving party walls, boundary walls and excavations near neighbouring buildings

.

Question 27

What are the 3 types of notice which can be served under the Party Wall Act

Answer 27

1. Section 1. Line of Junction Notice
2. Section 2/3. Party Structure Notice
3. Section 6. Adjacent Excavation

Question 28

What can you do if you need to access neighbouring land and the adjacent owner refuses access and the works are not covered by the Act and no easement exits,

Answer 28

• Under common law there is no right of access to neighbouring land, an owner can absolutely refuse access to their property,
• The Access to Neighbouring Land Act 1992 provides a court procedure for gaining access in certain circumstances. This takes form of an Access Order. Obtaining an Access Order through the courts can be time-consuming.

Question 29

What are the possible defences for a tenant served with an interim schedule?

Answer 29

1. Section 146
   
   1. Claim relief of the Leasehold Property Repairs Act 1938 within 28 days of schedule service, undertaking surviving works.
   2. Only if their lease is 7 years + with more than 3 years left to run they may be protected under the The Leasehold (repairs) Act 1938.
   3. Or undertake works.
2. Jervis V Harris Clause
   
   1. Undertake works within given timescale
   2. Or seek Court relief against landlord entering the premises.
3. If in final 18 months of the tenancy
   
   1. Negotiate with landlord, undertaking agreed works.
   2. Apply to Court for relief from the schedule.
   3. Undertake all the work

Question 30

What are the defenses for a tenant served a terminal dilaps and a final dilaps schedule?

Answer 30

Terminal

• Do the works
• negotiate with the landlord for settlement

Final

• negotiate with the landlord for settlement

Question 31

Can you tell explain to me about the dilaps assesment you did at Wigmore Street - how was the dilapidations liability being assigned and why were you involved?

Answer 31

• I was acting on behalf of a tenant who was assigning their lease to a new tenant in order to respond to a schedule produced by the incoming tenant, the assignee.
• My client wanted to challenge the amounts the assignee wished to claim be paid to them to cover the outgoing tenants dilaps liability but also to investigate the service charge cap which was causing friction with the landlord.
• A tenant’s liability for dilapidations can be ‘rolled over’ on the assignment of a lease and the new tenant (the assignee) will inherit any disrepair.
• In addition to any disrepairs, the new tenant will also inherit the cost of reinstating any alterations that have been carried out during the term up to the date of assignment.
• It is up to the new tenant to negotiate a payment from the existing tenant to cover the cost of any potential dilapidations claim at the end of the term.
• Either way, a landlord should not be affected by their arrangement.
• However, in some leases the landlord has the opportunity to withhold consent to an assignment of the lease if there are serious outstanding breaches of the lease.

Question 32

What is the dilapidations pre-action protocol and what is it’s objective?

Answer 32

The Dilapidations Pre-action Protocol

• produced by the Property Litigation Association in consultation with RICS.
• It relates to dilapidations claims for damages against tenants at the termination of a tenancy
• First published in 2002
• Requires the landlord’s surveyor to sign an endorsement confirming, amongst other things, they had followed the protocol.
• Adopted under the Civil Proceedure Rules in 2012
• The protocol applies to commercial property situated in England and Wales.

OBJECTIVE

• aim of preventing landlords exaggerating claims and to lead the way for early settlements without involvement of the courts.
• encourage the exchange of early and full information about the dispute;

Question 33

What is the difference between a terminal and a final schedule of dilaps?

Answer 33

• terminal
• produced in last 18 months of tenancy or at the end.

Question 34

What is the role of the third suveyor in party walls

Answer 34

To help reach an agreement if the main two survyeors cannot agree.

Question 35

What does line of junction mean?

Answer 35

Line of junction

The term line of junction is often used in the party wall world to mean a boundary line

Question 36

What is a party wall?

Answer 36

This is a wall that stands astride a boundary of land belonging to two or more different owners. Interestingly enough, the Act doesn’t just relate to party walls (that is why we have the etc. bit) and also it redefines different types of party walls.

Question 37

What is a party fence wall

Answer 37

Party fence wall

The first term we will look at is the party fence wall. This is a wall that doesn’t form part of a building and stands astride the boundary line between lands of different owners. In summary, it is used to separate these lands. Typically, it is a garden wall and that is what most people would call it, but it doesn’t include a wooden fence!

Question 38

What is the purpose of the dilaps protocol?

Question 39

Which is the main piece of legislation surveyors are required to refer to when undertaking dilapidations?

Question 40

Level 2.

What are the limitations of an asbestos management survey?

Question 41

Can you tell me an example of how you complied with the approved documents during your case study project?

Question 42

Regardless of size and complexity, what must all projects have as a requirement under cdm 2015.

Answer 42

1. For all projects, commercial clients must:
2. make suitable arrangements for managing their project, enabling those carrying it out to manage health and safety risks in a proportionate way. These arrangements include:
3. appointing the contractors and designers to the project (including the principal designer and principal contractor on projects involving more than one contractor simultaneously) while making sure they have the skills, knowledge, experience and organisational capability
4. allowing sufficient time and resources for each stage of the project
5. making sure that any principal designer and principal contractor appointed carry out their duties in managing the project
6. making sure suitable welfare facilities are provided for the duration of the construction work
7. maintain and review the management arrangements for the duration of the project
8. provide pre-construction information to every designer and contractor either bidding for the work or already appointed to the project
9. ensure that the principal contractor or contractor (for single contractor projects) prepares a construction phase plan before that phase begins
10. ensure that the principal designer prepares a health and safety file for the project and that it is revised as necessary and made available to anyone who needs it for subsequent work at the site

Question 43

Level 3.

When are you unable to serve an interim schedule of the dilapidations?

Answer 43

At the end of the tenancy or when it has expired, courts would also take a dim view in the final 18 months of the tenancy

Question 44

What clauses would you typically consider when undertaking a schedule of dilapidations?

Question 45

Can you explain to me how you advised the tenant on service charge cap? Is this something a building surveyor should do?

Question 46

What can you tell me about a part 36 and when you would do this?

Answer 46

A Part 36 offer is an offer made by either the claimant or the defendant as a tactical step designed to convince the other party to settle the claim early without the matter having to go to Court

The name comes from the Civil Procedure Rules (CPR)

‘Part 36′ deals with offers made on a ‘without prejudice’ basis, which means any Part 36 offers will not be seen by the Court (if the case gets that far) until after the judgment has been made and an appropriate level of compensation awarded by the Judge.

If a party does not “beat” a Part 36 offer at trial, the inference is that they should have accepted that Part 36 offer and were unreasonable to force the case to continue to trial. The key feature of Part 36 is that it allows the Court to impose penalties for that unreasonableness in the form of enhanced interest and costs. The purpose of making a Part 36 offer is to put pressure on the other side to settle the dispute without the need to go to trial.

A Part 36 offer can be made at any time, including before the commencement of proceedings. However, if the offer is made less than 21 days before trial, or after the trial has started, the costs consequences in Part 36 will not be automatic but rather at the court’s discretion.

Generally speaking, if a Part 36 offer to settle is accepted, the claimant is entitled to their costs “of the proceedings”.

Question 47

What is the difference between a calderbank and and a part 36 offer

Answer 47

• Calderbank offer is more flexible than a part 36 offer as there are less prescriptive timescales e.g. expiry period of 21 days, payment within 14 days.
• Under calderbank however, costs are awarded at the discretion at the court. wheras a part 36 offer the defendant (usually the tenant) receives some protection over costs unless the offer can be bettered.

Calderbank offers are also known as without prejudice save as to costs settlement offers. Calderbank offers may be used as an alternative to Part 36 offers. In many ways they are more flexible than Part 36 offers, but the costs consequences are entirely at the discretion of the court, unlike Part 36 offers.

They must adhere to a certain format and are governed by strict time rules. They offer defendants costs protection if a claimant ‘fails to obtain a judgment more advantageous’ than the Part 36 offer.

Alternatively, offers can be made on a ‘without prejudice’ basis. These may include an offer in respect of costs or may even be a non-monetary offer. These offers are commonly known as Calderbank offers. Their costs consequences are governed by CPR Part 44.

Question 48

What must the client do on a notfiable project

Answer 48

1. For notifiable projects (where planned construction work will last longer than 30 working days and involves more than 20 workers at any one time; or where the work exceeds 500 individual worker days), commercial clients must:
2. notify HSE in writing with details of the project
3. ensure a copy of the notification is displayed in the construction site office

Question 49

Can you list the building regulations?

Answer 49

• A - Structure A=acro prop
• B -Fire Safety B = BURNS
• C Site preparation and resistance to contaminates and moisture C=contaminate
• D Toxic substances D is for DEATH
• E Resistance to sound E=EAR
• F Ventilation F=FART
• G Sanitation, hot water safety and water efficiency: G=GROSS
• H Drainage and waste disposal H=looks like a drain pipe.
• J Combustion appliances and fuel storage systems: J= JOTUL woodburner
• K Protection from falling, collision and impact: K looks like a person falling
• L Conservation of fuel and power: L=lighting
• L1B: Conservation of fuel and power in existing dwellings
• M Access to and use of buildings
• P Electrical safety P=POW
• Q Security in dwellings Q=M15
• R High speed electronic communications networks
• 7 - Material and workmanship: Approved Document 7

Question 50

What is the controlling legislation applicable to party walls?

Answer 50

Party Wall etc Act 1996

Question 51

What is the purpose of the Party Wall etc Act?

Answer 51

The Act provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings, that may otherwise constitute trespass or nuisance

Question 52

When does the Party Wall etc Act come into play?

Answer 52

The Act covers:

1. Proposals to erect a new wall at a boundary that is not already built on (Section 1)
2. Various work proposed directly to an existing party wall or structure (Section 2)
3. Excavation within 3 or 6 metres of a neighbouring building or structure, depending on the depth of the hole or proposed foundations (Section 6)

Question 53

What are the different types of party structure?

Answer 53

1. A wall that stands astride the boundary of land belonging to two or more different owners
2. ‘Party fence walls’ (e.g. a garden wall), but not things like wooden fences
3. A wall that stands wholly on one owner’s land but used to separate two or more owners’ buildings
4. Any wall, floor partition or other structure separating parts of buildings approached by separate entrances or staircases (e.g. flats)

Question 54

What different party wall notices are there?

Answer 54

1. Section 1 - Line of Junction Notice
2. Section 3 (for Section 2 works) - Party Structure Notice
3. Section 6 - Notice of Adjacent Excavation

Question 55

What time frames are associated with a Line of Junction Notice?

Answer 55

1. Must be served at least 1 month prior to work commencing
2. If the Building Owner wishes to build on both lands, he needs written consent from all Adjoining Owners within 14 days of serving the notice
3. If the foundations of the proposed wall project onto the Adjoining Owners’ land but the wall itself is wholly on the Building Owner’s land, then unless the foundations are ‘special foundations’, the Building Owner can proceed without written consent from the Adjoining Owner and has between one and 12 months from the date he served the notice to complete the works

Question 56

What is a right to light?

Answer 56

A right to light is a right to receive sufficient light through a ‘defined aperture’, allowing ordinary and comfortable use and enjoyment of a dwelling, or ordinary beneficial use and occupation of other buildings

Question 57

What legislation governs rights to light?

Answer 57

• Prescription Act 1832
• Rights to Light Act 1959

Question 58

What guidance is available for rights to light?

Answer 58

RICS Guidance Note ‘Rights of light: practical guidance for chartered surveyors in England and Wales’

Question 59

What is an easement?

Answer 59

An easement is a right which a person has over land owned by someone else

Question 60

How are easements created?

Answer 60

Easements can be created by:

1. Express grant (e.g. set out in a conveyance deed)
2. Necessity (e.g. if there is only one means of access to a site)
3. Prescription (the act has been repeated for at least 20 years)

Question 61

Name some different types of easement.

Answer 61

1. Rights of way
2. Right to light BL BUYING NEIGHBOURING BUILDINGS
3. Right for underground services to pass beneath the land of a neighbouring property SEWER IN OUR GARDEN!
4. Right of support
5. Right to draw water

Question 62

How can you check if a footpath is an easement?

Answer 62

• Check the landlowners deeds or the occupiers lease
• Legally, sellers must disclose easements on their property during the sale

Question 63

What are dilapidations?

Answer 63

Dilapidations are breaches of leases due to the condition of the property being leased, either during or at the end of the lease period

Question 64

What guidance is available in terms of dilapidations?

Answer 64

RICS ‘Dilapidations’ (2012) guidance note

Question 65

What is the purpose of a Schedule of Dilapidations?

Answer 65

1. Basis of a dilapidations claim and is a list in a prescribed format detailing items of repair and decoration which a landlord considers is in need of remedying in order to comply with the terms of the lease
2. Will often be used as a basis for negotiations between the landlord and tenant, with a view to reaching a settlement

Question 66

What information would you include in a Schedule of Dilapidations?

Answer 66

1. Item number
2. Clause number breached
3. Details of breach
4. Remedial works required
5. Cost of remedial works

Question 67

What types of dilapidations schedules are available?

Answer 67

1. Interim Schedule
2. Terminal Schedule
3. Final Schedule

Question 68

When would you use an interim schedule?

Answer 68

Served during the term of the lease, giving tenants the opportunity to remedy any breaches before any outstanding works escalate

Question 69

When would you use a terminal schedule?

Answer 69

Served within the last 3 years of the term of the lease, giving tenants early warning of any potential claim

Question 70

When would you use a final schedule?

Answer 70

Served at the end of the lease and may contain the same breaches as the interim and terminal schedules, but the tenant will not be entitled to undertake remedial works themselves once their right of occupation ends

Question 71

What is a Scott schedule?

Answer 71

1. If a dispute is not resolved and proceedings are commenced, the claim may be based on the Schedule of Dilapidations prepared by the claimant’s surveyor
2. A Scott Schedule is used to compare the claimant’s input with the defendant’s response
3. Described by the Technology and Construction Court as a table in which the claimant’s case is set out item by item in the first few columns and the defendant’s response in the adjacent columns

Question 72

What information would be contained within a Scott schedule?

Answer 72

1. Item number
2. Clause number breached
3. Details of breach
4. Remedial works required
5. Landlord’s comments
6. Landlord’s costs
7. Tenant’s comments
8. Tenant’s costs

Question 73

How would you establish the costs in claims for dilapidations?

Answer 73

Cost information can be obtained from:

1. Current BCIS data or other recognised price books (e.g. Spon’s), providing regional adjustments are applied
2. Relevant and recent tender price information
3. Consultation with a contractor

Question 74

What documents would you examine prior to preparing a Schedule of Dilapidations?

Answer 74

1. Lease
2. Schedule of condition (including photos)
3. Inventories
4. Scaled plans
5. Licenses or other consents for alterations
6. Fit-out specifications
7. Side letters or other written agreements

Question 75

What is the significance of Section 18 of the Landlord and Tenant Act?

Answer 75

Section 18(1):

1. Diminution valuation - for repairs, the landlord cannot claim for more than the difference in market value between the existing condition and the condition when repaired
2. If the landlord is going to demolish the building or make structural alterations that would render any repairs valueless, then the tenant will not have to pay

Question 76

What are the implications of Section 146 of the Law of Property Act 1925?

Answer 76

1. Warns a tenant who is in breach of a covenant (not relating to paying rent) of the landlord’s intention to forfeit the lease
2. The notice must specify the breach complained of and if the breach is remediable, require the tenant to remedy it
3. Allows the landlord to recover from the tenant the costs and fees incurred following the serving of a Section 146 Notice

• NB: additionally, a clause is often written into leases allowing the landlord to recover from the tenant costs in the preparation and service of a schedule of dilapidations

Question 77

What amendments to dilapidation procedures were brought about by the Woolf reforms?

Answer 77

The Woolf reform ‘Access to Justice Report’ (1996) focused on avoiding litigation and promoting settlement between parties at dispute, and essentially gave rise to the Civil Procedure Rules (CPR)

Question 78

What effect do the Civil Procedure Rules have on dilapidations procedures?

Answer 78

1. Introduced in 1999, the CPR are a series of rules that aim to encourage parties to avoid litigation by arriving at a settlement, thus reducing the number of cases going to court and saving expense and time
2. Encourages the parties to exchange full information before proceedings are issued so everyone has a full indication of the case made against them
3. Gives powers to judges to impose sanctions on a party whom they deem to have behaved unreasonably before or during the litigation, even if that party wins the claim (e.g. may make the winner pay some or all of the loser’s costs)

Question 79

What is the PLA Protocol?

Answer 79

For dilapidation claims at the end of a tenancy, the PLA (Property Litigation Association) Protocol aims to address the objectives of the CPR by setting out the conduct the courts expects the parties to follow before commencing proceedings, such as timescales for the exchange of information and standards for the content and quality of schedules of dilapidations and quantified demands

Question 80

What is a ‘quantified demand’?

Answer 80

A document that enables the tenant to understand the full extent of the landlord’s claim for damages at the end of the tenancy

Question 81

What items would you expect to see within a ‘quantified demand’?

Answer 81

1. Cost of repair works
2. Loss of value of the property
3. Loss of rent and service charge
4. Insurance
5. Security
6. Utilities
7. Cleaning
8. Fees (e.g. professional/legal)

Question 82

What are the requirements for a ‘quantified demand’ in relation to the PLA Protocol?

Answer 82

The PLA Protocol states the quantified demand must:

1. Fully substantiate the claim
2. Should be sent to the tenant within 56 days of terminating the lease
3. Specify a date for the tenant’s response (usually 56 days after receiving the quantified demand)
4. Not include items of work that are likely to be superseded by the landlord’s intentions for the property
5. Be prepared in accordance with the principles set out in the RICS ‘Dilapidations’ Guidance Note

Question 83

What is the result of serving a Schedule of Dilapidations?

Answer 83

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Question 84

How would you go about carrying out a Schedule of Dilapidations?

Answer 84

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Question 85

What can be claimed for in a Schedule of Dilapidations?

Answer 85

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Question 86

What might you expect to find in a landlord’s claim served after the end of a 25 year lease?

Answer 86

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Question 87

How would you limit a dilapidations claim being made?

Answer 87

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Question 88

In an interim schedule and in relation to Section 5.1 of the 1938 Act, what are the factors that affect whether or not an item should be included?

Answer 88

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Question 89

What criteria will determine if there is a need to carry out a repair on a property?

Answer 89

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Question 90

Following the preparation of an interim schedule, you notice unauthorised alterations made by the tenant during the term. How would you advise your client?

Answer 90

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Question 91

What is a lease?

Answer 91

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Question 92

What covenants are commonly found in a lease?

Answer 92

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Question 93

How can a tenancy be brought to an end?

Answer 93

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Question 94

What is a FRI lease?

Answer 94

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Question 95

How would you advise a Landlord with a tenant in occupation who has 6 years to run on a 25 year FRI lease and who has not been looking after the premises?

Answer 95

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Question 96

A property held under a 99-year FRI lease and now in the last 3 years of the term develops a defect in the foundations, which requires underpinning. What factors will affect whether the Landlord can recover the cost from the tenant?

Answer 96

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Question 97

What is the significance of the Leasehold Repairs Act 1938?

Answer 97

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Question 98

When is a tenancy classed as a business tenancy?

Answer 98

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Question 99

Explain how the Landlord and Tenant Act 1954 protects business tenancies.

Answer 99

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Question 100

How would you define the term ‘disrepair’?

Answer 100

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Question 101

Outline an important case relating to a Landlord’s breach.

Answer 101

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Question 102

What may happnend if you contravene building regs?

Answer 102

1. Local authority enforces via The building act 1984
2. Prosecution magistrates court
   
   1. Only until up to 2 years after the work is completed.
   2. Unlimited fine
   3. Against the contractor
3. Section 36 enforcement notice on the building owner requiring alteration or removal of work
   
   1. not more than 12 months following completion of the work
   2. not if the work which you have carried out is in accordance with your full plans application which the authority approved or failed to reject.
   3. can appeal to majistrates court to overturn

If you do not follow the building control procedures set out for handling your building work or you carry out building work which does not comply with the requirements contained in the building regulations, you will have contravened the regulations.

Prosecution and enforcement notices

A local authority has a general duty to enforce the building regulations in its area and will seek to do so by informal means wherever possible. If informal enforcement does not achieve compliance with the regulations the local authority has two formal enforcement powers which it may use in appropriate cases.

First, if a person carrying out building work contravenes the Building Regulations, the local authority may prosecute them in the Magistrates’ Court where an unlimited fine may be imposed (sections 35 and 35A of the Building Act 1984). Prosecution is possible up to two years after the completion of the offending work. This action will usually be taken against the person carrying out the work (builder, installer or main contractor).

Alternatively, or in addition, the local authority may serve an enforcement notice on the building owner requiring alteration or removal of work which contravenes the regulations (section 36 of the 1984 Act). If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner.

A section 36 enforcement notice cannot be served on you after the expiration of 12 months from the date of completion of the building work. A local authority also cannot take enforcement action under section 36 if the work which you have carried out is in accordance with your full plans application which the authority approved or failed to reject.

An appeal against a section 36 notice may be made to a Magistrates’ Court under section 102 of the Building Act.

Where an approved inspector is providing the building control service, the responsibility for checking that the building regulations are complied with during the course of your building work will lie with that inspector. They will usually do this by advising you.

However, approved inspectors do not have formal enforcement powers. In a situation where the inspector considers your building work does not comply with the building regulations and there is a refusal to bring it into compliance the inspector will cancel the initial notice. If no other approved inspector takes on the work, the building control function will automatically be taken on by your local authority. From this point on, your local authority will also have enforcement powers set out above where it considers this necessary.

Impact on Selling the Property

Notwithstanding the possibility of enforcement action, you should bear in mind that if the local authority or approved inspector considers that building work carried out does not comply with the building regulations and it is not rectified, no completion/final certificate will be issued and this is likely to come to light through a local land search enquiry when you wish to sell your property.

Question 103

What happens if you contravene the HASAWA?

Answer 103

1. HSE enforces
2. Improvement notice
3. Prohibition Notice
4. Crown
   
   1. Crown bodies are exempt from the provisions of HSWA relating to improvement and prohibition notices, prosecution and penalties
   2. Crown notices are the non-statutory equivalent of improvement and prohibition notices

Question 104

What are the four remedies that are available to a tenant in a dilapidations claim agains their landlord?

Answer 104

1. Damages -
   
   1. BUT FOR rule The amount of damages tenants are entitled to is that which, so far as money can, would put them in the position they would have been had there been no breach by the landlord.
   2. Section 18(1) of the Landlord and Tenant Act 1927 does not apply to a tenant’s dilapidations claim for damages
2. Set off
   
   1. ​tenant seeks to deducts from rent
3. Self help
   
   1. tenant does works trhemselves (tresspass?)
4. Specific performance
   
   1. ​-through courts landlord forced to do the works.
   2. exceptional cases.

Question 105

Can you name some case law relating to dilapidations?

Answer 105

1. Shortlands V Cargil 1995
   
   1. Section 18 LTA 1921
   2. Shortland was landlord
   3. it was suggested that there could be no loss because the building was alleged to have a negative reversionary value.
   4. However, the court held that there could be even greater negative value as a result of the disrepair.
   5. Valuation A in repair (hypothetical)
   6. and valuation B at present condition.
2. Proudfoot v hart 1890
   
   1. Principle of ‘Good tenantable repair’
   2. to keep a house in good tenantable repair the tenants’ obligation is to put and keep the premises in such repair as having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a tenant of the class who would be likely to take it.
   3. E.g. compared a property in grovener square to that of one in spittalfields which in 1890 would have been a startk contrast.
   4. The age of the house must be taken into account, because nobody could reasonably expect that a house 200 years’ old should be in the same condition of repair as a house lately buil
3. Tiger V Sunlife 2013
   
   1. LTA 1927
   2. Tenant Tiger had a 35 year lease with landlord sunlife
   3. Tiger argued even if they’d left the premises in good repair, sunlife would still have had to carry out the major refub it did.
   4. Tried to argue under section 18
   5. Judge said diminution in value of the building would have been greater than the cost of the works
   6. landlord won - 1.4 million
4. Jervis V Harris 1996
   
   1. Leasehold Property (Repairs) Act 1938
   2. Case confirmed a landlord is entitled to serve a schedule of wants of repair on the tenant and enter the property and carry out the works in default of the tenant doing so
   3. the debt that is then claimed in respect of the cost of the works undertaken by the landlord does not have to be pursued in a manner that complies with the Leasehold Property (Repairs) Act 1938.

Scottish versus BT 1994

1. Loss of rent (landlord and tenant 1927)
2. Where a landlord claims loss of rent as a head of damages at the end of the term of the lease, it is ‘an essential prerequisite that it should be demonstrated on the balance of probabilities that the carrying out of those repairs after the end of the term has prevented or will prevent the letting of the premises for that period.’
3. because the relevant market at the time was so depressed that it was impossible to show that the landlord would have been able to relet the premises to better advantage even if the premises had been delivered up in repair
4. The decision also suggested that, if a landlord were to give notice to the tenant that it was required to reinstate alterations the tenant might be able to have a reasonable period to stay at the property to enable it to complete the necessary works.
   5.

Question 106

What is a Jervis V Harris Clause?

Answer 106

1. Jervis v Harris clause” which gives a landlord certain powers. It enables a landlord to inspect tenanted premises, serve a repair notice on the tenant, carry out repairs when the tenant fails to do so, and to recover the cost as a debt
2. Landlord can recover and bypasses the provisions of the 1938 Leasehold repairs act.

Question 107

You’re acting on behalf of a landlord who wishes to recover damages and/or forfeiting their tenants lease mid-term due to . The lease term is 15 years and it has 5 more years left to run. What would be your advice?

Answer 107

• I would advise the landlord that the Leasehold Property (Repairs) Act 1938 applies
• The tenant will have protection because their lease was more than 7 years and has more than 3 years left to run.
• This means the landlord musrt seek the court’s permission before suing for damages or forfeit the lease
• The conditions underwhich this might be granted are if the works:
  
  1. are required to prevent a substantial diminution in the value
  2. to comply with legislation;
  3. immediately required in the interests of other occupiers of the premises;
  4. that the disrepair can be remedied at a smaller expense now in comparison with a greater expense if delayed;
  5. special circumstances.

Generally, this is a high threshold to overcome but in serious cases of disrepair, permission will be given and the works can then be enforced pursuant to a court order.

Question 108

What is relief under section 147

Answer 108

Can provide relief to a tenant served a section 146 forfiture Notice under the law of property act 1925

Forfeiture is effectively the granting back to the landlord of the right to re enter and take back possession of the property.

For forfeiture to take place the landlord has to issue the notice in order to conform with the requirements of the Law of Property Act.

A landlord cannot just take back possession because the lease has been breached, he must follow the required procedure. This is because section 2 of the Protection From Eviction Act 1977 states that it is not lawful to forfeit a lease without going through the court.

Question 109

What is a section 146 notice?

Answer 109

What is the notice?

It is a notice served under section 146 of the Law of Property Act 1925 by a landlord to their tenant to terminate a lease early due to a breach by the tenant of the terms of the lease.

It is only possible to issue such a notice if there is a right to forfeit the lease (a right of re-entry) written into the lease. The notice confirms that forfeiture proceedings (to terminate the lease) will be brought because a covenant (a contractual promise) in the lease has been breached unless the breach is not remedied (assuming the breach is capable of being remedied).

The types of covenant that are commonly breached include:

A covenant to maintain and repair the property; or

A covenant not to keep pets at the property.