18 - Legal/Regulatory Compliance Flashcards
What are the main sections of the Party Wall etc Act 1996 ?
Section 1 applies where it is proposed to erect a new wall at a boundary that is not already built on.
Section 2 concerns existing party structures, which include party walls, floors and partitions (that separate buildings or parts of buildings), party fence walls (essentially a boundary wall between lands in separate ownership which is built astride a boundary) and, in some instances, a neighbour’s independent property.
Section 6 can apply to excavations up to 6 m away from a building or structure on neighbouring land, subject to depth criteria which the Act sets out.
The three types of Notice are known, respectively as:
- Section 1: Line of Junction Notice
- Section 3 (for S2 works): Party Structure Notice
- Section 6: Notice of Adjacent Excavation
What is supersession ?
Supersession is an undefined legal concept which effectively means that a landlord should not claim for the remedy of a tenant’s breach, because the landlord is proposing to do something else to the building which would supersede the need for the tenant to remedy their breach.
What is Section 1 Notice / Line of Junction Notice ?
If you are planning to build a new wall either as a Party Wall or a Party fence wall (astride a boundary) subject to your neighbour’s consent, or up to the line of junction and wholly on your own land, a Section 1 Notice must be served.
If a proposed wall needs foundations to a lower depth than your neighbours foundations, a Section 6 notice could also be required.
One month notice must be given before the works commence.
What is a Section 3 Notice / Party Structure Notice?
If you are planning to cut into a Party Wall to insert flashings or a damp proof course, cut away chimney breasts or projections, raise, rebuild repair, underpin, expose the Party Wall to the weather
or enclose upon a wall on or at the line of junction turning it into a Party Wall, in such cases a Section 3 Notice must be served.
Two months notice must be given for a section 3 Notice.
What is a Section 6 Notice / Notice of Adjacent Excavation ?
If you are planning to excavate within 3m of neighbour’s foundations to a lower depth, or within 6m to a lower depth than a line struck at 45 degrees down from the underside of the neighbour’s foundations, then a section 6 notice must be served.
One month notice must be given before work commences and in addition, plans and sections of the proposed works must be provided with the notice.
Under planning what are the use classes ?
The classes were updates in Sep 2020 to :
Class B2 - General Industrial
Class B8 - Storage and Distribution
Class C1 - Hotels Class C2 - Residential Institutions Class C2A - Secure Residential institution Class C3 - Dwellinghouse Class C4 Houses in multiple occupation
Class E - Commercial, Business and Service
Class F - Local Community and Learning
Sui Generis - (in a class of its own) anything not included in the other classes.
What is a build over agreement ?
A Build Over Agreement is required where building work is to take place close to (within 3 metres of) or over the route of an existing public sewer or drain. Any work involving new foundations, underpinning, piling or basements requires approval of the Water Company prior to work commencing on site.
When can you serve an interim dilapidation claim ?
To any lease longer than 7 years with more than 3 years remaining (other would be terminal)
What is a section 18 notice ?
S18(1) of the Landlord and Tenant Act 1927 related to
- Diminution of value
- Supersession
What are the timescales attached to planning permission ?
Normally within 8 weeks however this can be requested to be extended. Which can be appealed but is a lengthy process.
What are the timescales attached to building control ?
Normally 5 weeks but can be extended to 8 weeks by agreement.
What are the timescales attached with a building notice ?
Works can start when the application has been accepted. This normally takes 2 days.
What does keep in good and substantial repair mean ?
That the building is to be kept in good condition during the course of the lease term. Clients can be protected via a SOC prior to the lease to protect against betterment.
Can you give me some examples of permitted development rights ?
Permitted development rights are the right to carry out certain works without planning permission. These rights are contained within the The Town and Country Planning (General Permitted Development) (England) Order 2015.
Examples of works :
Single storey extension - max height 4m,3m if within 2m of a boundary, max depth 4m if detached house
Two storey extension - Max height to match house
When do you need to comply with Building Regulations regarding upgrading works ?
Roof replacing more than 25% thermal upgrading required.
Thermal elements - More than 50% of the thermal elements (surf area) being replaced it should complies with L1A.
Dilapidations, what are to be included within a Section 18 (1) claim ?
This claim for a diminution in value must only include the breached of repair and NOT include any decoration or reinstatement works. These other claims/works/values should be considered outside of the cap(diminution in value)
There is case law (Latimer v Carney 2006) which suggests that there can also be a statutory cap on decorations. See Watts Pocket handbook for more info
What types of properties is building regulations not applicable?
Part L requirements do not apply to buildings which fall into the following categories:
* Certain buildings which are listed, in conservation areas or are included in the schedule of monuments - where compliance with the energy efficiency requirements would unacceptably alter their character or appearance.
* Buildings which are used primarily or solely as places of worship
* Temporary buildings with a planned time of use of 2 years or less, with low energy demand
* Industrial sites, workshops and non-residential agricultural buildings with low energy demand
* Stand-alone buildings other than dwellings with a total useful floor area of less than 50m²
What is the time frame to make an appeal when a planning application is rejected?
3 months
Can you name some BS doc ?
- 459 – Building Lime
- 998 – Mortar
- 8000-12 - Decoration
- 1722 - Palisade fencing
Are you aware of any new approved documents?
Part O - Overheating
Part S - Electrical Car Charging
Can you give me an example of when you have been required to submit a planning application ? why was the application required ? What application was it ? What was part of the application.
Candidate specific.
What is a lawful development certificate ?
Lawful development is development against which no enforcement action may be taken and where no enforcement notice is in force, or, for which planning permission is not required.
What are the main types of Building Regulations applications ?
- Full plans
- Building notice
- Regularisation
What is the advantages and advantages of a full planning application ?
Advantages:
* You know that as long as you carry-out the work in line with the approved plans it will meet the regulations
* Everyone involved knows in advance exactly what is required. There should be few nasty (or expensive!) surprises
* You can provide an approval notice to financial institutions, solicitors, and so on, when you are applying for loans or moving home
* As long as the work is carried out in line with the approved plans, and all the relevant inspections find the work is of a satisfactory standard, you get a completion certificate
Disadvantages:
* It is expensive to prepare detailed plans which include all the information necessary to carry out the work
* You have to programme the work to allow enough time to prepare plans and for them to be processed
* Once the plans have been submitted, it takes between 3-8 weeks for us to carry out the required checks and notify you, or your agent, as to whether, or not, they are satisfactory
* You may have an agent’s fee to pay
What is the advantages and advantages of a Building Notice ?
Advantages of a Building Notice:
You only have to submit an application form and the required charge
You save time and money by not having to prepare and submit detailed plans
You only have to prepare a site plan
Once the notice has been submitted, you only have to wait 48 hours before starting the work, so there are no long time delays involved in this type of application
Disadvantages of a Building Notice:
You do not have an approved plan to work to. Although you may try to prepare for possible problems, if the work does not meet regulations, there may be a delay while the work is corrected
You may not know that the work is incorrect until it is inspected
Building estimates may not be accurate because full information about the design is not available
All charges (plan and inspection) are paid at the time of deposit
No approval notice
Plans and calculations are often required to support your application
All work must comply with the Building Regulations, without plans a detailed knowledge of the requirements is essential
For smaller work, and with the benefit of an experienced builder, Building Notice applications are often the obvious choice and the majority of work involved is carried out without problems. The Building Notice procedure deals with straightforward work, which should be carried out by people who understand the regulations
What is a regularisation application ?
This is a special type of application, and is used only where works have been carried out without consent. Where work has been carried out over 12 months ago, it is unlikely that local authorities will take enforcement action. In these cases, although you may not face prosecution, but will find it extremely difficult to sell the property, as the purchasers’ solicitor will almost certainly wish to see proof of Building Regulation Approval. Regularisation is only applicable to work carried out since 1984.
Disadvantages of regularisation applications:
• Charges are 50% higher those for applications made at the right time
• You will almost certainly have to “open up” works, which is expensive, causes damage to decoration and, at the very least, is highly inconvenient
• We will not accept Regularisation applications for electrical work
• Even where the work is found to comply with the Building Regulations, it takes around a week to obtain a Regularisation Certificate. Where problems are found, it can take considerably longer
• It is always more expensive to fix problems after the event than to avoid them in the first place
What are the types of planning applications ?
- Householder planning consent
- Full planning consent
- Outline planning consent
- Reserved Matters
- Listed building consent
- Advertisement consent
- Lawful Development Certificate (LDC)
- Prior approvals (except the type listed below)
- Removal/variation of conditions
- Approval (Discharge) of conditions
- Consent under Tree Preservation Orders
- Notification of proposed works to trees in conservation areas
- Non-material amendment of an existing planning permission
What is the main act in relation to planning ?
The Town and Country Planning Act 1990 formed the basis for much of the contemporary planning system. It was intended as a response to the post-Second World War need for large-scale rebuilding and planning of towns and cities, as well as to help reorganise industry.
What is the purpose of The Town and Country Planning Act 1990?
Takes account of the policies at national and regional level insofar as they affect the physical and environmental planning of its area; and. Provides the framework for local plans.
What legislation is linked to planning ?
- The Town and Country Planning Act 1990 is an act of the United Kingdom Parliament regulating the development of land in England and Wales. It is a central part of English land law in that it concerns town and country planning in the United Kingdom.
- The Planning (Listed Buildings and Conservation Areas) Act 1990 is an Act of Parliament of the United Kingdom that altered the laws on granting of planning permission for building works, notably including those of the listed building system in England and Wales
What laws and regulation do you consider regarding dilapidations ?
- Landlord and Tenant Act 1927
- Dilapidations Protocol
- Jervis v Harris
What is the case law of Jervis v Harris?
What does Jervis V Harris Clause mean? A clause in a lease or tenancy agreement which allows the landlord to serve a notice on a tenant to carry out repairs. Where a tenant fails to do so, the landlord may enter, carry out the works itself and recover the costs from the tenant as a debt.
What are the types of party walls ?
“Type A
A wall that stands astride the boundary of land belonging to two (or more) different owners. Examples include walls separating terraced or semi-detached houses or walls that form the boundary between two gardens, known as a “party fence wall” (see more detailed description below).
Type B
A wall that stands wholly on one owner’s land, but is used by two (or more) owners to separate their buildings. Examples include where one neighbour has a structure that leans against a wall that is owned by the other neighbour. Only the part of the wall that is enclosed by the lean-to is a Party Wall.
Party Wall fence
A party fence wall is described as a wall that separates 2 owners’ land (Not part of a building). It does not form part of a building but instead extends from it. If the ‘wall’ sits on one side of the boundary then this would not be considered a ‘Party Fence Wall’ under the Party Wall etc Act 1996 and is often referred to as a boundary wall or garden wall.
Party wall structure
A Party Structure shares similar characteristics as a party wall. In addition to what is notifiable to a party wall or party fence wall, the term party structure is often used to describe the physical division between 2 properties or land.”
What is the RICS Dilapidations document ?
The RICS Guidance note 7th Edition Sep 2016, provides practical guidance to dealing with dilapidations within England and Wales. Subjects include taking instruction, documentation, inspection , schedules, diminution valuations.
What is Planning ?
Planning seeks to guide the way our towns, cities and countryside develop. Includes the use of land and buildings and the appearance of buildings etc.
What can happen if you have made changes to your property that require planning permission ?
- The LA can request a retrospective planning application for those works
- If the retrospective planning application is refused. The LA can issue an enforcement notice which require you to put things back as they were.
What is an enforcement notice ?
Enforcement Notices are legal documents that require certain action be taken to remedy a breach of planning control. They are issued where development has taken place without the correct planning permission or outside the conditions of a planning permission.
What are the timescales attached to buildings that have not applied for planning permission ?
Can apply for a certificate of lawfulness for most buildings after 4 years, or for all other developments 10 years.
Can you give me some typical conditions attached to a planning application ?
- The development hereby permitted shall be begun before the expiration of three years from the date of this permission
- The development hereby permitted shall not be carried out other than in complete accordance with the approved plans
What is the definition of unauthorised work ?
Construction work carried out to a listed building without planning permission.
What is an article 4 direction ?
Removal of permitted development rights within a specific area to be defined. This could for example be within a conservation area. This then prompts the requirement to submit the relevant application. The reasons for the directions are normally to prevent development that would harm the character of the area. For this reason, the form of development normally allowed through the Town and Country Planning (General Permitted Development) Order 2015 has been restricted.
What is permitted development ?
Allowing specified works without needing to apply for planning permission, these are specific to the type of property. For example the rights of a residential house will differ to a commercial property.
What legislation does it fall under ?
The Town and Country Planning (General Permitted Development ) Order 2015
Do it apply to everywhere (The Town and Country Planning (General Permitted Development ) Order 2015) ?
No, areas can be removed under an ‘ Article 4 Direction’’
What is an article 4 direction ?
When the pre determined rights are removed for a specific reason, this could include if the building is within a conservation area, a national park, area of outstanding natural beauty, a world heritage site etc.
Can you give me some examples of works that fall within and outside of permitted development ?
- Small extension
- Loft conversion
- Garage conversion
- Porch
- Roof lights not facing highway etc.
What is the aim of permitted development ?
Permitted development rights are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application. Permitted development rights are subject to conditions and limitations to control impacts and to protect local amenity.
What is a lawful development certificate ?
Proof that the project/works do fall under permitted development and does not require planning permission. This can be useful for when the property is sold as proof the works were lawfully completed.
What are the advantages of permitted development ?
Faster timescales, if your works fall within the parameters you are not at the mercy of the planning department and or committee
What is the Town and Country Planning Act 1990 ?
Act of parliament which regulations the development of land in England and Wales.
What enforcement notices can be served ?
It is a legal document issued where there is a breach of planning control. A breach is something that has been done without proper planning permission or failure to comply with conditions or permitted development.
What is S106 notice ?
S106 of the Town and Country planning act provides that the local authority can enter into an agreement with a developer to restrict the development of land. It allows the LA to ensure that certain criteria will be met in order to approve a development.
What is permitted development ?
Town and Country Planning (general permitted development) order sets out what types of developments would be known as permitted development which will place restrictions on the size of the development and stipulate certain classes to be able to change without requiring planning permission. Does not apply to conservation areas, national parks etc.
Tell me about the recent changes to permitted development.
The class listings changed and changes were made to allow certain houses to be developed without the need for permission subject to meeting a certain criteria. It allowed for certain commercial unit classes to change without needing planning in an attempt to keep the high street alive.
Give some examples of work where planning permission is required ?
- New build construction on a vacant site
- New build extension that is not permitted development
- Change of use that is not permitted change of use
- Work to a building in a conservation area
What is the timeframe for planning consent?
Generally 8 weeks but there is a validation period first and has been extended in recent times.
What recourse if it would have been rejected (planning) ?
If there were grounds for appeal, a statement with the reasons of appeal with evidence can be submitted to the courts or secretary of state within 6 months of decision.
What is NPPF?
National Planning Policy Framework - Sets out government planning policies for England and how they should be applied. Published on 27th March 2012. Implemented to make the planning system less complex and more accessible and protect the environment. NPPF updated in 2018 with minor amendments in 2019.
Types of planning application ?
• Householder planning consent This form should be used for proposals to alter or enlarge a single house, including works within the boundary/garden of a house. It should be used for projects such as: – Extensions – Conservatories – Loft conversions – Dormer windows – Garages, car ports and outbuildings
• Full planning consent;
You should use this application form to make a detailed planning application for development, excluding householder developments. For the purposes of this form, development includes building, engineering or other works, in, on, over or under land, or the making of any material change in the use of any buildings or other land. As such it should be used for:
– Any works relating to a flat
– Applications to change the number of dwellings (flat conversions, building a separate house in the garden)
– Changes of use to part or all of the property to non-residential (including business) uses
– Anything outside the garden of the property (including stables if in a separate paddock)
• Outline planning consent
Applications for outline planning permission seek to establish whether the scale and nature of a proposed development would be acceptable to the local planning authority, before a fully detailed proposal is put forward.
This type of planning application allows fewer details about the proposal to be submitted. Once outline permission has been granted, you will need to ask for approval of the details (“reserved matters”) before work can start.
• Reserved Matters
Where outline permission has been granted, you may, within three years of the outline approval, make an application for the outstanding reserved matters, i.e. the information excluded from the initial outline planning application. This will typically include information about the layout, access, scale and appearance of the development.
• Advertisement consent This form should be used for proposals to display an advertisement or sign which requires planning permission. The term advertisement covers a very wide range of advertisements and signs including: – Posters and notices – Placards and boards – Fascia signs and projecting signs – Pole signs and canopy signs – Models and devices – Advance signs and directional signs
What is a design and access statement ?
A design and access (DAS) statement is a short report accompanying and supporting a planning application. They provide a framework for applicants to explain how a proposed development is a suitable response to the site and its setting and demonstrate that it can be adequately accessed by prospective users.
What are the timesclaes attached to planning application ?
- Once a planning application has been validated, the local planning authority should make a decision on the proposal as quickly as possible, and in any event within the statutory time limit unless a longer period is agreed in writing with the applicant.
- The statutory time limits are usually 13 weeks for applications for major development.
- 8 weeks for all other types of development (unless an application is subject to an Environmental Impact Assessment, in which case a 16 week limit applies).
What are the key points within the Landlord and Tenant Act 1985 ?
Landlord has to notify leaseholders of works that may affect them.
- 1 - Notice of intention
- 2- Notice of proposal
- 3- Award of contract notice.
- Section 18 covers dilapidations
What scales you typically see on plans?
OS Map = 1:1250,
Block plan = 1:500
What type of building applications are there?
- Full plans- This is the most detailed option. Decisions are usually made within five weeks. If your building work meets standards, you will receive a completion certificate within eight weeks of completion of the building work.
- Building notice - A building notice is used for smaller projects. You can begin your alterations two days after your notice has been submitted to your building control body. Unlike full plans, you do not receive formal approval.
- Regularisation - This is retrospective approval and is used for work that has already been carried out but without consent. You can only apply to your local authority building control for regularisation.
Which type of inspector did you use ?
Local authority building control officer or approved inspector.
What are the consequence of falling to comply with building regulations ?
This can result in formal enforcement action under section 35 and 26 of the building act 1984. Section 35 - breach of building evaluations, section 36 - removal or alteration without prejudice by notice
What are the Building Regulations ?
The Building Regulations set standards for the design and construction of buildings to ensure the safety and health of people in or about those buildings
What is Approved Document L1A and L1B
- Approved Document L1A is for the conservation of fuel and power in NEW dwellings.
- Approved Document L1B is for the conservation of fuel and power in EXISTING dwellings.
When were building regulation first introduced ?
The first set of national building standards were introduced in the Building Regulations 1965. These were a set of prescriptive standards that had to be followed. The Building Act 1984 brought fundamental changes to the building regulations regime.
For what purposes can a Building Notice be used instead of a full Building Regulations submission?
A Building Notice is more appropriate for minor residential alterations and/or extensions when the building is competent and confident in the compliance of the works.
What are the advantages/disadvantages of using a Building Notice compared to a full Building Regulation submission?
No requirement for full plans Can start construction within 48 hours of notice obviously never receive the protection and reassurance that an approved notice would give you Building Regulations on your own shoulders. Builder must be familiar with all the relevant regulations
What are the key risks to the building owner/client of using a Building Notice?
A building notice application leaves the client at risk that completed works might not be approved, resulting in remedial costs.
Explain the Building Regulations 2010 and why we need them?
The Building Regulations are intended to protect people’s safety, health and welfare in and around buildings. The regulations are also designed to improve conservation of fuel and power, protect and enhance the environment and promote sustainable development.
When is a building regulation application not needed ?
- Maintenance work
- Minor repairs
- Replacing less than 25 per cent of an item, like-for-like
- Additional power or lighting points and switches (except around baths and showers)
- Alterations to existing circuits (except around baths and showers)
- Like-for-like replacements of baths, toilets, basins or sinks
- Boundary or garden walls, fences and gates
- In some cases, works that are being carried out by competent registered persons (check details for this with your local LABC team)
What buildings do not require building regs approval ?
- Greenhouses (providing they are not used for retail, packing or exhibiting)
- Some agricultural buildings (check with your local LABC team)
- Temporary buildings (erected for less than 28 days)
- Some ancillary buildings such as estate sales buildings and building site offices without sleeping accommodation
- Some small detached buildings (check with your local LABC team)
- Buildings that are not frequented by people (check with your local LABC team)
- Detached single storey buildings, including garages, that are less than 30m2 floor area and at least one meter from any boundary unless constructed of non-combustible materials.
- Detached single storey buildings that are less than 15m2 floor area
- An extension to a building at ground level consisting of a porch of less than 30m2 floor area and separated from the house by an external type door
- A carport open on at least two sides
- A covered yard or covered way less than 30m2
- A conservatory or porch that is less than 30m2, with a significant proportion of the roof and walls glazed (no % given), it must be at ground level, it must comply with relevant sections of Part K (glazing), be thermally separated from the dwelling by external quality windows and/or doors and the buildings heating system must not be extended into the conservatory or porch.
- Crown property
- Buildings subject to the Explosives Act
- Buildings other than houses or offices erected on a site licensed under the Nuclear Installations Act
- Buildings included in the Schedule to Section 1 of the Ancients Monuments and Archaeological Areas Act
What are the Building Regulations?
The Building Regulations are made under powers provided in the Building Act 1984, and apply in England and Wales. They exist to ensure the health and safety of people in and around all types of buildings (i.e. domestic, commercial and industrial). They also provide for energy conservation, and access to and use of buildings.
What is deemed to constitute Building work under the Act?
Building Work’ is defined in Regulation 3 of the Building Regulations. The definition means that the following types of project amount to ‘Building Work’:
- the erection or extension of a building;
- the installation or extension of a service or fitting which is controlled under the regulations;
- an alteration project involving work which will temporarily or permanently affect the ongoing compliance of the building, service or fitting with the requirements relating to structure, fire, or access to and use of buildings;
- the insertion of insulation into a cavity wall; and
- the underpinning of the foundations of a building.
What are approved documents?
Practical guidance on ways to comply with the functional requirements in the Building Regulations is contained in a series of 17 Approved Documents.
What is the difference between an Approved Inspector vs. Building Control ?
Approved Inspectors are businesses which work in the private sector as an alternative to Local Authority Building Control (LABC).
An Approved Inspector will be registered with the Construction Industry Council (CICAIR) to advise and guide clients about the Building Regulations.
What is a Full Plans application?
- A full plans application can be used for any type of building work and gives the added protection of having the plans approved.
- The full plans application is deposited with the local authority, usually together with 25% of the full charge payable.
- With agreement, work may be started after 2 working days, however before the plans are checked and approved, it is at your own risk. You will be invoiced for the remaining part of the charge after work starts.
- You must inform the local authority at certain stages of the work so they can carry out inspections to confirm that building work is in accordance with the approved plans.
- On satisfactory completion of the building work, you will be given a completion certificate.
What is a Building Notice application ?
- A building notice cannot be used where the building is a workplace, as defined in the Regulatory Reform (Fire Safety) Order 2005.
- The notice is served on the local authority, together with the full charge payable.
- Work may be started after 2 working days. The local authority may ask for further details to support the notice
- You must inform the local authority at certain stages of the work so they can inspect the work. As no plans have been approved, it is important that these notifications are given
- On satisfactory completion of the building work, you will be given a completion certificate.
What are Approved Documents?
A series of documents from the Secretary of State that give practical guidance about how to meet the regulations 2010. May also stipulate test or calculations as required by regulations
What are the Building Regulations?
Made under powers provided in the Building Act 1984. They are there to ensure health and safety of people in and around all types of buildings. They provide for energy conservation and access to and use of buildings. Latest version amended is 2010
What is deemed to constitute Building work under the Act ?
- Defined in regulation 3 of the building regs. The following types of work constitute “building work”
- Erection or extension of a building
- Installation or extension of a service or fitting controlled under the regs
- Alteration project involving work which will temporarily or permanently affect the ongoing compliance of the building, service or fitting with the requirements relating to structure, fire, access or use.
- Insertion of insulation into a cavity wall
- Underpinning of foundations
What are Approved Documents?
Practical guidance on ways to comply with the functional requirements in the regs and contains a series of 17 approved documents
Can you name some of the approved documents ?
- A-Structure (2013)
- B-Fire Safety (2020)
- C-Site Prep and resistance to contaminates and moisture
- D-Toxic Substances
- E-Sound
- F-Ventilation
- G-Sanitation, hot water safety and water efficiency
- H-Drainage and waste disposal
- J-Combustion Appliances and Fuel Storage
- K-Protection from falling, collision and impact
- L-Conservation of fuel and power
- M-Access to and use of buildings
- P-Electrical Safety
- Q-Security in Dwellings
- R-High Speed electronic communications networks
- O – Overheating
- S - Infrastructure for the charging of electric vehicles
What is the difference between Local Authorities and Approved Inspectors?
Same thing, AI’s are just approved by the secretary of state.
Are there any time frames involved with the appointment of an approved inspector?
If you appoint an AI, they need to submit an initial notice and the council have 5 days to reject it. Has to be submitted 5 days before work on site starts.
Explain your knowledge of the Party Wall etc. Act 1996 ?
Prevents and resolves disputes in relation to party walls, party structures, boundary walls and excavations near neighboring buildings
What is a Party Wall?
A wall which stands astride the boundary of land belonging to two or more different owners
What are the different types of notices?
Line of Junction Notice, Party Structure Notice, 3 meter Notice and 6 meter notice
When two PW Surveyors are appointed. One to act for the Building Owner and one to act for the Adjoining Owner what is the first thing they should agree upon?
The Third Surveyor
What is the purpose of an Award (Party Wall) ?
It grants each owner specific rights. Namely the building owner with regards to rights to access to carry out notifiable work. It grants rights to the adjoining owners with regards to compensation or other means of financial protection such as security of expenses. It controls how notifiable works should be undertaken to mitigate damage to the structure.
What is the Party Wall Act 1996 ?
Purpose was to facilitate construction operations near the vicinity of boundaries. It does this by providing a procedural framework to notify neighbours and facilitate negotiations.
What is the main aim of the Act?
- To prevent delays to construction.
- To enable an owner to undertake specific work
- Protects neighbours
Under the Party Wall Act, who is an owner?
Under S20 of the act, an owner is someone with more than one years tenancy
What are the types of a party structure?
- Type A – A wall astride the boundary
- Type B – a wall wholly on one side which is enclosed on
- Type C – Party fence wall
What are the duties of the Building Owner?
Notify the neighbours of their intentions to carry out work under the act. Carry out the work without causing risk and making good any damages.
How does the BO notify the AO?
Serving notices under the act. Should have names, addresses, start dates, sections under the act and if s6 notice, a foundation detail.
What happens after serving the Notice?
Neighbour must respond within 14 days to consent or dissent, if no response, 10 day letter, if still no response, 10(4) appointment
What is an Award?
Document describing the works and the rights and duties granted to each owner in connection with the works they are proposing
When do you serve a section 2 notice?
Works to the party structure.
When do you serve a section 6 notice?
Excavating within 3 or 6m if the foundations cut the 45 degree line from the neighbouring foundations
What are special foundations?
Reinforced foundations
What is Right to Light?
Assessment of whether proposed obstructions are likely to interfere with neighbours easement of light.
When do the CDM Regulations apply?
The CDM regulations apply to every construction project
Give me some examples of the key duty holders of the CDM regulations.
- Client
- Principal designer
- Principal contractor
Under CDM, is a Principal Designer required on all projects?
Yes, a principle designer must be appointed on all construction projects involving more than one contractor
When is a project notifiable under CDM?
A construction project is notifiable if: It’s scheduled to last longer than 30 working days AND has more than 20 workers working simultaneously; OR. The project exceeds 500 person days
What pieces of legislation are relevant to dilapidations ?
Section 18 of the Landlord and Tenant Act 1927 Dilapidations Protocol (property liaison association 2002 Split into two limbs :
- A the landlord cannot claim more than the diminution in value and the landlord reversion
- B the landlord cannot claim for the works if they are looking to carry out the works anyway or planning to demolish the property.
Please give some examples of the guidance given in the RICS guidance note on dilapidations.
*Sets out the role of the surveyor to act in accordance with the Dilap Protocol .
*Fees must be contractual.
*Scotts Schedule and Diminution Valuation: a valuation prepared in order to calculate the diminution in value of a landlord’s property incurred as a result of alleged breaches.
What is dilapidations?
Dilapidations refers
to breaches of lease
covenants that relate
to the condition of
a property during the
term of the tenancy or
when the lease ends
When would you serve a dilapidation ?
Interim served up to 3 years before the lease term ends and terminal served between 3 years and end of term.
What laws do you need to be aware of when preparing dilapidations reports ?
- The Landlord and Tenant Act Leasehold Property (repairs) Act 1938
- Dilapidations protocol
- Jervis V Harris
What is Jervis V Harris Case Law ?
Self help clause from Dilapidation Case Law from 1995. When a tenant fails to maintain and repair a property in accordance with their obligations, the landlord is granted the right to serve notice on a Tenant specifying the breach. If the tenant does not repair the breach, the Landlord can carry out the works themselves and recover costs from the tenants.
What is the dilapidation protocol ?
A pre action protocol relating to dilaps claims against tenants at termination of tenancy with the aim of preventing landlords exaggerated claims. It describes the conduct courts expect the parties to follow before commencing dilapidation proceedings. Claims should be made no later than 56 days after the tenancy is terminated and with it a statement of truth and that all works are reasonable. The tenants surveyor should respond within a further 56 days and then the two surveyors should arrange to meet to come to an agreement within 28 days. If one cannot be made, look into ADR.
How do you prepare a schedule of dilapidations ?
- Firstly, identify who your client is, the tenant or the landlord. I would then following the Pre-Action Protocol.
I would review the lease to confirm what obligations the tenant has to comply with in terms of repairs, redecorations, reinstatement, yield up and payment.
I would confirm if the tenant has carried out any alterations and if there was a license to alter for said alterations. If alterations did not have a license, I would confirm with the landlord if a) they want to have the alteration reinstated or b) leave the alterations as they are in the event they improve the value/usability. I would then confirm with the client that we have no conflict of interest and arrange to visit the property to carry out a survey in order to prepare a schedule of dilapidations on behalf of the Landlord. This would involve assessing what on site is not compliant with the covenants of the lease as well as what can realistically be included. I would provide an estimated cost for the works to put the property back into repair. I provide a copy of the schedule to the client and their legal advisor to send to the opposite party who can then agree or disagree with the claim and then enter into negotiations.
* The dilapidations protocol sets out a time limit of 56 days to serve the schedule after the lease expires and provide a response within 56 days which can be followed up by the surveyors meeting on site to discuss the claim to come to an agreement and if not, go into ADR.
What is the Landlord and Tenant Act ?
Under section 18(1) of the 1927 act, the landlords claim for damages is limited to the diminution of value and supersession. I.e. if the landlord intends on demolishing the building and thereby render the tenants repairs and redecorations etc. pointless, you cannot make them carry out the works. Part 1 refers to repairs and part 2 refers to the value. If the value of the repair claimed exceeds the value of the interest in the premises has be diminished, a claim cannot be made. This value would be carried out by a competent valuation surveyor.
What is a Schedule of Wants of Repair ?
During a lease the landlord may require the preparation of a “schedule of wants of repair”. This may be served as an interim schedule (in effect a list of defects needing to be remedied) or as a full schedule detailing serious items of disrepair. The latter is with the intention either of forcing the tenant to carry out the remedial works or of regaining possession of the premises and obtaining the cost of repair in the form of damages from the tenant. Modern leases often reserve the right of the landlord to re-enter premises, carry out the work himself and then seek to recover costs.
During a lease the likely level of damages in respect of disrepair will usually be assessed on the basis of the diminution in the value of the landlord’s reversion as a result of the want of repair i.e. the difference in the value of the premises left unrepaired and their value if the repairing obligations had been performed.
Explain what a Jervis v Harris clause is.
Allows a Landlord to request repairs to a property during the term of a lease, should the tenant take no action, the clause allows the landlord to complete the works and recover the cost as a debt.
When would you issue a Terminal Schedule of Dilapidations ?
Last 3 years of a lease
What is the current RICS document on Dilaps?
RICS Guidance Note – Dilapidations in England and Wales, 7th edition, 2016
Define dilapidations in three words?
Breach of lease
What are dilapidations ?
Dilapidations refers to breaches of lease obligations, either express or implied and usually relates to repair, redecorate, reinstate, breaches of statute and other associated costs. A claim is an alleged breach of contract and as such is actionable by law.
What documents are required prior to a dilaps survey?
- Lease, plans
- Licenses to alter
- Schedules of condition
What lease clauses would you consider when consider a tenants dilaps liability?
- Repair
- Redecoration
- Reinstate
- Yield up
- License to Alter
- Surveyors fees
- Statutory obligations
Can fees be claimed ?
Generally, fee’s incurred by the landlord for preparing and serving a schedule cannot be recovered unless there is an express provision in the lease or pursuant to statutory provisions (section 146 of the Law of Property Act 1925).
Describe a schedule of dilaps
A column for the clause number, description of breach, remedy, cost, tenant comments and their surveyors cost estimate.
What are the three main types of dilaps schedules?
- Interim
- Terminal (Prior to Lease Expiry)
- Final (After Lease Expiry)
Up to when can you serve an interim dilapidation schedule?
Interim can be served up to 3 years before the end of the lease term. Between 3 years and the end of the lease, a terminal schedule has to be served.
What remedy can be sought from claims at the end of the term ?
Damages
What remedies can be sought from claims during the term ?
Damages, forfeiture, entry to carry out repairs with a claim for costs (JvH clause)
How is the assessment of loss calculated ?
A claim is based on the assessment of the cost of repairs. Claims can be made if the property is left in a state that reduces its value (diminution in value).
How can you go about limiting a dilaps claim ?
Review the lease covenants, assess costs for claims, review what is actually being claimed
Legal/Regulatory Compliance - Extract from Candidate Guide - Aug 2018 (updated Feb 2022)
What are the changes to Fire Safety Act?
For all premises with common areas and 2+ premises
*Information to residents; annually and when they move in
*Fire risk assessment prioritisation tool
*Information on fire doors, i.e. look out and report damage
For 11m-17.9m:
*Fire door checks
For 18m+ or 7 storeys:
*Secure information box
*Wayfinding for the fire service
*Lifts and fire fighting equipment
