All Legal/Regulatory Flashcards
1
Q
What is Dilapidations?
A
Dilapidations refers to breaches of lease obligations by the tenant and usually refers to reinstatement, repair, redecoration, breaches of statute and associated costs.
2
Q
What is a schedule of dilapidations?
A
A list of allegations of a breach of contract referring to specific lease covenants.
3
Q
What is a fixture?
A
Something which has been affixed to the building and has therefore lost it’s chattel nature but has not become an integral part of the building.
4
Q
What is a chattel?
A
Anything which is not an integral part of the building or a fixture. It is a ‘loose’ object.
5
Q
What does the degree of annexation mean?
A
The degree of annexation refers to how firmly an object is fixed to the land and relates to the intentions of the party who put the object there for it to be removed or form an integral part of the building.
6
Q
Can you tell me any dilapidations case law which relates to fixtures and chattels? (What was the outcome of this case?)
A
Holland Vs Hod
Looms for use in a mill were attached to the stone floor by nails in wooden beams.
Mill repossessed and the court awarded that the looms were fixtures despite that they could be easily removed.
It was held that the object ceased to be a chattel as the looms were installed for the convenience of the land and could not be enjoyed as a chattel.
7
Q
What conditions must be satisfied for a fixture to be capable of being a tenant’s fixture?
A
Affixed by or on behalf of tenant
Fall within one of the categories of tenant’s fixtures
Fixed with the intention of removing as and when the tenant wished
8
Q
What are the categories of tenant’s fixtures?
A
Trade fixtures – Attached to undertake trade / business
Ornamental and domestic fixtures
Agricultural fixtures
9
Q
Under what scenarios has the tenant lost the right to remove their chattels and fixtures?
A
Forfeiture – Where tenancy forefeited, unless relief granted, no right.
Surrender – Tenant vacates without taking C&F, lost the right
Break – Right to remove ends on expiry of notice unless notice period too short. E.g. highly technically data centre needs more than say 4 weeks.
10
Q
What happens to chattels and fixtures at the end of the tenancy which remain in the property?
A
The landlord can recover the cost of removing the tenants chattels
The tenant fixtures can either be removed, if in breach of alterations covenant or if left, left in accordance with the repairing covenant. Generally, the cost for either can be recovered from the tenant.
11
Q
Can you name me some the landlord’s remedies?
A
Claim for damages post lease expiry/during the term.
Landlord undertakes the works (during the term).
Specific performance (during the term).
Forfeiture (during the term).
12
Q
What is the purpose of damages?
A
To put the landlord in a position it would have been had the tenant complied with their lease covenants. It should reflect the landlord’s actual loss in the cost of repairs or the diminution to the landlord’s reversion.
13
Q
What Act limits recovery of damages and when does it apply?
A
The Leasehold Property (Repairs) Act 1938
Applies to claims made during the term when the tenancy is over 7 years and there are 3 or more years remaining.
14
Q
What does the Leasehold Property Repairs Act 1938 do?
A
The act limits the ability of the landlord to recover damages from a tenant for breach of repairing covenant during all but the last three years of the term of a lease.
It protects the tenant against forfeiture without the permission of the court.
15
Q
What is a Section 146 Notice and what Act does it fall under?
A
A Section 146 Notice (breach of repairing covenant) is a notice served by the landlord on a tenant who has breached a repairing covenant in a lease.
It falls under the Law of Property Act 1925
16
Q
What 5 grounds under the LPA 1938 can leave be given by the court to the landlord?
A
Immediate remedy to prevent substantial diminution
Immediate remedy to comply with byelaws/legislation
Immediate remedy needed in interest of occupier (third party)
Immediate remedy to prevent substantial cost increase in the works
Court render it just.
17
Q
What is forfeiture?
A
When the landlord seeks to reclaim possession of the property.
18
Q
How can forfeiture be undertaken?
What are the advantages and disadvantages of each method?
A
Peaceable re-entry (changing the locks or re-letting the building)
Court proceedings (the best way)
Peaceable re-entry has no legal fees but can leave the landlord open to a claim for damages if the forfeiture was unlawful.
Court proceedings are the best method but can be slow
19
Q
What is the process of forfeiture?
A
Lease must contain forfeiture clause
Landlord serves valid S.146 Notice
Reasonable period of time passes and tenant does not comply.
If the tenant is protected by the 1938 Act, he can serve a counter notice within 28 days of receipt of landlord’s notice
Landlord cannot forfeit the lease without leave of the courts.
20
Q
Tell me how the landlord can enter the property to undertake repair work
A
The lease may contain a right for the landlord to enter the property to undertake work. This is referred to as a Jervis Vs Harris Clause.
21
Q
What happened in Jervis Vs Harris?
A
A landlord made a claim against a tenant having entered and carried out the specified work in default of the tenant.
The landlord recovered the cost of the works as a debt on demand and not damages.
It was held that the Leasehold Property Repairs Act 1938 was held not to apply.
22
Q
What is the process of initiating a Jervis Vs Harris Clause?
A
Landlord serves notice in compliance with the clause served by a solicitor with a time period of say 2 months. The remedies are basic.
On expiry of notice, landlord can enter the premises and undertake works specified in notice.
Landlord can then recover the cost of the works as a debt.
23
Q
What are the disadvantages of the Jervis Vs Harris Clause?
What happens if access is refused?
A
The landlord could leave himself open to as claim for breach of trespass and/or breach of quiet enjoyment.
Landlord has to forward front the cost of the works without certainty of recovery.
If access is refused, The Landlord will have to get an injunction from the court
24
Q
What is specific performance?
A
Where no Jervis Vs Harris clause, the courts may grant a remedy for specific performance.
Injunction requiring the tenant to comply with the lease obligation
25
Can you list me some tenant’s remedies?
Damages
Self-help
Set-off
Insolvency
Frustration
26
How are damages calculated for the tenant?
What sum would put the tenant back into a position it would have been but for the breach of covenant by the landlord.
Allow a notional deduction in rent and a global figure for inconvenience and discomfort
27
What is self help
Talk me through the process of self-help?
If the landlord has been notified by the tenant about breaches of its repairing obligation but does nothing, the tenant can undertake the works themselves and seek to recover the cost from the landlord.
Process:
Tenant should notify landlord in writing and invite landlord to undertake works or at least inspect.
Tenant should retain photographs and obtain two competitive quotes for the work.
Tenant undertakes works and looks to recover the cost of the works from the landlord.
28
1. What is set-off?
| 2. When might a tenant use this defence?
1:
Deduction from rent and other sums due to the landlord.
2:
When the tenant has carried out the works in default of the landlord not carrying them out.
The tenant should notify the landlord and state it will exercise right if work not undertaken.
29
Can you tell me some of the common conditions of a break notice?
Service of a notice
Payment of a premium
Providing vacant possession
Compliance with lease obligations
Paying all rents, service charge and insurance monies.
30
What is vacant possession?
At the moment that vacant possession is required to be given, the property must be empty of people and chattels and that the landlord is able to assume and enjoy immediate and exclusive possession, occupation and control.
31
1. What are the different levels of compliance often seen in break clauses?
2. What is the difference between these terms?
1:
Absolute compliance
Substantial / Material compliance
Reasonable compliance
2:
Absolute compliance can frustrate the break if there is a single breach of covenant, no matter how trivial.
Material or substantial compliance is less than absolute but more than a reasonable level o compliance. E.g. £20k repairs in a £1m scheme (Fitzroy)
Reasonable compliance is less than material compliance and court would look at a tenant’s conduct in carrying out any repairs.
32
What happened in Bairstow Eves (Securities) Vs. Ripley and what was the effect?
The tenant was required to decorate in the last year of the term.
The tenant had decorated just before the last year.
A condition had not been met and the lease failed to break.
Shows that if the condition was present, it should be complied with otherwise the lease can continue.
33
1: Can you name the Dowding & Reynolds 5 Part Test?
2: What Case would you associate with required state of repair?
1:
What is the physical subject matter of the covenant?
Is the subject matter in a damaged or deteriorated condition?
Is the nature of the damage or deterioration such as to bring the condition of the subject matter below the standard contemplated by the covenant?
What work is necessary in order to put the subject matter of the covenant into the contemplated condition?
Is the work none the less of such a nature that the parties did not contemplate that it would be the liability of the covenanting party?
2:
Proudfoot vs. Hart
Repair required ‘good and tenantable repair’. The kitchen floor was rotten so landlord argued full replacement
Age, character and location of the house fit for reasonably minded tenants.
If perfectly rotten, new floor. If it can be repaired as expected by a reasonably minded tenant, then this satisfies clause.
34
With regards to the Dowding & Reynolds 5 Part test, What elements should be considered when ascertaining the level of necessary work required?
The four strands to assessing the appropriate remedy:
1) Physically possible to repair defective item?
2) If it is not possible to effect a repair or repair now obsolete.
3) The effect of statutory improvements over the life of the lease.
4) Flexibility within the method of repair for breach of covenant.
35
Can you explain the difference between the words repair and condition?
Repair relates to the fundamental physical properties of an element
Condition relates to the appearance and aesthetics.
36
What does the Landlord and Tenant Act 1954 do?
The 1954 Act broadly gives business tenants security of tenure which is a statutory right to remain in their business premises when their lease ends and seek to agree a new tenancy.
37
How does the landlord exclude the previsions of the 1954 Act?
Service of a Section 25 Notice.
Landlord to serve tenant with a warning notice not less than 14 days before tenant committed to lease.
Tenant must sign simple declaration that tenant has read the notice.
Notice and declaration often found annexed or written into the lease.
38
With regard to the Landlord and Tenant Act 1927, what is a Section 18 valuation?
A Section 18 (1) valuation is an assessment of difference between the value of the landlord’s revision had the tenant complied with its lease obligations and the value of it in its actual condition.
39
Explain Section 18 (1) of the Landlord and Tenant Act 1927
Section 18 (1) provides a statutory cap on the landlord’s claim for damages under the repairing covenant at the end of the term.
It only applies to the repairing covenant.
40
What was the effects of Latimer and Carnery & Ors?
That case concluded that decoration may in some cases fall into the scope of Section 18 (1) owing to the particular wording of the covenant to repair. It referred to ‘decorative repair’
41
Explain Section 18 (2) of the Landlord and Tenant Act 1927
The effect of Limb II is to reduce the landlord’s claim in damages where the landlord has an intention to substantially alter or demolish the building.
Commonly referred to as supersession.
42
What was the effect of Sunlife Vs Tiger Aspect Holdings Ltd?
Sunlife Vs Tiger was able to demonstrate that even if the landlord has to carry out substantial upgrade works to a building following lease expiry, the cost of some of those upgrade works are recoverable from the tenant despite an argument of supersession
Sunlife was able to show that had the tenant complied with its lease obligations, only modest upgrade works would have been required to the property.
43
What is the difference between an interim, terminal and final SoD?
Interim is served during the term.
Terminal schedule is served around expiry.
Final schedule is served after expiry.
44
With regard to dilapidations, what is the surveyor’s endorsement?
A requirement of the Pre-action Protocol to confirm in that the option of the surveyor:
- All the works which are set out are reasonably required in order to put the premise in a condition as per lease
obligations
- Full account has been taken of the landlord intentions
- Costs are reasonable.
The surveyor should check with the landlord at each time (near end of lease and post expiry) before making endorsement.
45
What are consequential losses?
Loss of rent income, business rates, insurance premiums, service, income and cost of finance.
Landlord cannot recover more than its loss.
46
Describe how VAT in dilapidations works
VAT is not applicable on a settlement as no goods or services have been exchanged.
VAT can form part of damages.
If the subject premises are elected for VAT, tenant pays VAT on rent and landlord can recover output VAT, therefore it is not applicable on dilapidations claims.
If the subject premises are not elected for VAT, tenant does not pay VAT on rent and landlord unable to recover output VAT. If the landlord intends to undertake the work, VAT is applicable, if not, no VAT.
47
What is the law of Property Act 1925?
A statute consolidating the enactments relating to conveyancing and the law of property in England and Wales.
48
What are the Civil Procedure Rules 1999?
The civil procedure rules seek to reduce time in court and save on costs.
They make up a procedural code whose overriding aims is to enable the courts to deal with cases justly.
The civil procedure rules introduced the pre-action protocols.
49
With regard to dilapidations, what is the Woolf Report?
A report which led to the creation of the civil procedure rules and the dilapidations protocol in England and Wales. The report identified that the system was too slow, expensive, complex and inaccessible.
50
What is the dilapidations protocol?
It relates to claims for damages for dilapidations against tenants at the termination of a tenancy.
It applies to commercial property situated in England and Wales.
51
What are the objectives of the dilapidations protocol?
To encourage the exchange of early and full information about the dispute.
To enable the parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced.
To support the efficient management of proceedings where litigation cannot be avoided.
52
Can you talk me through the dilapidations protocol?
Landlord SoD to Tenant: The schedule of dilapidations should be sent 56 days after termination of the tenancy, but can be sent prior to lease end.
Landlord QD to Tenant: The landlord should issue a quantified demand within 56 days after termination of the tenancy.
Tenant SS Response: The tenant should issue a tenant’s response normally within 56 days after the landlord sending the quantified demand.
Negotiations: Negotiations then take place with a meeting normally occurring between the landlord and tenant or their respective surveyors within 28 days after the tenant issues their response.
Quantification of Loss: During negotiations, the landlord should quantify its loss by providing a formal diminution of value or an account of actual expenditure.
Stocktake: A review of both side respective positions before formalising court proceedings. Both parties should look to narrow issues to their final point.
53
With regard to dilapidations, What is a quantified demand?
A quantified demand presents an account of the likely loss incurred by the landlord or if the works has been undertaken, the actual loss.
54
With regard to dilapidations, when should a quantified demand be sent and what should be included?
56 days from lease expiry.
Summary of losses.
Party and lease details.
Supporting documents.
Statement of party willing to attend meetings.
55
What is the Property Litigation Association?
A body of lawyers specialising in property litigation
56
What is Part 36 Offer?
A Part 36 Offer enables the landlord and the tenant to make an offer to settle at any time before the claim is issued or during proceedings.
57
What are the implications of a Part 36 Offer?
If the claim proceeds to trial, then any offer made by either party will be taken into account when it comes to awarding costs.
58
Why would you use a Part 36 Offer? What are the advantages?
If one of the parties ignores or rejects an offer because they have not assessed the merits and weaknesses of their position, that side can be exposed to greater risks regarding costs if damages are awarded at the level of or better than the Part 36 Offer.
59
What must be included in a Part 36 offer for it to be valid?
It must be in writing and be made clear it is pursuant to Part 36
Be open for acceptance for a period of not less than 21 days
State whether it relates to a part of the claim or the whole of it.
The date on which the offer expires.
60
What happens if the tenant asks the landlord to clarify the offer within 7 days of receipt?
The landlord can give clarification as requested but,
If nothing forthcoming, the tenant can apply for an order for the Landlord to do so.
61
When are Part 36 Offers not appropriate?
Where there are multiple defendants
Where the intention is to settle on commercial terms. i.e. by offering future business.
Defendant wants flexibility with payment (Part 36 offer strict)
(All of the above are more suited to Calderbank Offers)
62
What are the cost consequences of non-acceptance of a Part 36 offer from the landlord claiming on the tenant?
Very onerous on the tenant for not accepting the offer
Ordered to pay:
- The claimant’s (landlord’s) costs on an indemnity basis starting on the date the offer expired;
- Interest of the whole of part of the sum awarded (not exceeding 10%);
- An additional amount, capped at £75k, calculated by applying the prescribed percentage on the amount of
damages/costs awarded.
63
What are the cost consequences of non-acceptance of a Part 36 Offer from the defendant tenant issued on the Landlord?
The defendant will recover its reasonable costs from the claimant from the date the relevant period expired and;
Interest on those costs.
If the claim is dismissed, or nothing recovered, tenant entitled to its costs.
64
Explain ‘sunset clauses’ in Part 36 offers?
A clause that states that the offer will automatically expire if not accepted by a certain date provided that date fall outside the relevant period. (21 days).
If no sun-set clause, unless withdrawn, a Part 36 offer can be accepted at any time, even if originally rejected / counter offer made
(A Part 36 offer remains open until withdrawal)
65
Can a Part 36 offer be inclusive of costs?
No, the scheme of Part 36 and the cost consequences mean that the offer cannot be inclusive of costs.
66
What is a Calderbank offer?
A letter containing a settlement offer which is made on a “without prejudice save as to costs” basis.
67
Why would you make a Calderbank Offer?
They offer more flexibility than Part 36 offers and don’t specify clear cost consequences.
When considering costs following trial, the court has discretion to decide how much weight to add to a rejected or ignored Calderbank offer.
68
When would you use a Calderbank Offer?
Make a settlement offer with different cost consequences than Part 36;
Make an offer with limited time acceptance (less than 21days?)
Where defendant makes an offer, because it does not believe that it will be able to pay full amount within 14 days (Part 36)
69
What is without prejudice?
A rule that prevents statements made in a genuine attempt to settle an existing dispute, whether made orally or in writing, from being put before the court as evidence of admissions against the interest of the party which made them.
70
What is ADR and what are the advantages of it?
A collective description of methods of resolving disputes otherwise than through the normal trial process.
It is used for its speed, privacy, informality and cost.
71
Can you tell me some of the different methods of ADR?
Arbitration
Mediation
Expert Determination
72
What is Mediation?
Mediation is an alternative method of settling disputes and is a way of resolving differences between parties and is voluntary.
73
How does the apportionment of costs happen in Mediation?
Each party bear their own costs of mediation
74
What are the advantages and disadvantages of mediation?
Advantages:
- Quicker than litigation.
- Confidential and avoidance of publicity.
- High degree of party control.
- Assists in clarification of points even if settlement not reached.
Disadvantages
- Is not legally binding.
- Can be used a as a stalling tactic.
- Parties not obliged to continue with negotiations or mediation.
75
What is arbitration?
Arbitration is an alternative to litigation as a method of resolving disputes.
76
Why would you advise a client to pursue arbitration?
Decision is binding.
Confidential process.
More flexible than litigation.
Allows parties to choose tribunal.
77
What are the duties of an arbitrator?
Act fairly and impartially.
Give all parties reasonable opportunity to state their case.
Adopt suitable procedures that avoid unnecessary delay and expense.
78
How are the costs apportioned in arbitration?
The arbitrator will award the party who has lost the arbitration to pay the costs of the successful party.
79
If your client was not happy with the outcome of an arbitration award, what options are open to them?
The arbitrator’s decision is final.
The award can only be contested on the grounds of serious irregularity, lack of jurisdiction or on a point of law.
Appeals can happen on a point of law but permission must be granted by the court of appeal.
80
What is Expert Determination?
The parties ask an independent expert to give a binding decision on a dispute.
81
When would you use expert determination?
On a technical issue, judges and arbitrators will look to an independent expert for advice. This method goes direct to source on technical issues.
82
What happens if the parties cannot agree to the identity of the independent expert?
The president of the RICS will appoint an independent expert on their behalf.
The Independent expert will then make sure there is no conflict of interest before making contract with the parties.
83
What are the advantages of independent expert services?
Privacy.
Finality – If the parties agree to be bound by the expert’s decision, it is very difficult to challenge it.
Expert advice.
84
What are the disadvantages of using an independent expert?
Risk of unfavourable outcome against which there will be no appeal.
Hard to enforce as it is on a contractual basis and must be written into the contract between the parties.
85
What is the dilapidations Scheme?
A scheme overseen by the RICS that uses an independent expert to attempt to provide quick and economic resolution of lease-end dilapidations disputes.
86
What is a listed building?
A building or structure that has been included in a list under Section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990
87
Why are buildings listed?
The building or structure must be of special architectural or historic interest.
88
Who has responsibility for listing buildings?
The Secretary of State is responsible for compiling the list of buildings which are of special interest. Historic England is responsible for the administration of listed buildings and provides advice on listing requirements.
89
What are the listed building grades?
Grade I
Grade II*
Grade II
90
In regards to listed buildings, what is grade I?
Buildings which are of exceptional interest – Can be internationally important.
91
How would you identify if a building is listed?
Contact the conservation office at the relevant Local Planning Authority.
Check online at the LPA website.
Check National Heritage list for England online.
Consult National Monuments Record in Swindon.
Consult Heritage Gateway.
92
How are buildings added to the list?
Systematic survey of an area.
Review of building types.
Spot listing (individual apps by LPA, amenity groups, individuals, etc).
93
How does the National Planning Policy Framework define Listed Buildings?
As Designated Heritage Assets.
94
What is a Certificate of Lawfulness?
A formal confirmation that planned works to a listed building does not require listed building consent because the work does not affect the special architectural or historic interest of the building.
95
What are the timescales for listed building consent?
Typically a decision should be forthcoming within 8 weeks, although it can be around 13 weeks if it is a major project.
96
What is a Conservation Area?
An area of special architectural or historic interest with a character of appearance that is desirable to preserve.
97
How might you identify that a building is in a conversation area?
Contact the conservation office at the relevant Local Planning Authority.
Check online on the LPA website.
Refer to relevant local plan documents in the public library.
98
What are the effects of a building which is situated in a conservation area?
Tighter planning controls.
Permitted development rights become limited within conservation areas.
Both planning and conservation area consent might be required.
99
What does the National Planning Policy Framework do?
It sets out the government’s environmental, economic and social planning policies for England.
100
What was the Penfold Review?
The review sought to identify whether non-planning consents were delaying or discouraging investment.
101
What are non-planning consents?
Those consents other than planning permission and can include listed building consent and conservation area consent.
102
What were the findings and the recommendations of the Penfold Review?
The review found that there was unnecessary bureaucracy, uncertainty about timings for approval, duplication of roles and an absence of service culture.
It recommended to strengthen service culture, wider adoption of best practice, reduce duplication and speed up processes.
In essence, streamline the processes.
103
What are the types of development?
Operational development;
Change of Use.
104
What does development include?
Building operations;
Material changes of use of land and buildings;
Engineering and mining operations;
Sub-division of a dwelling house to create 2 or more dwelling houses.
105
What does development exclude?
Interior alterations.
Non-materially affecting work to the exterior of the property.
106
What is a material change of use?
Changing the use of a building between classes.
Permission is not required if change of use is within the same class.
107
What Act governs use classes?
Town & County Planning (Use Classes) Order 1987
108
What are the different ‘A’ use classes?
A1 Shops;
A2 Financial & Professional Services;
A3 Restaurant & Cafes;
A4 Drinking Establishments;
A5 Hot food takeaways.
109
What is meant by Sui Generis?
A use which does not explicitly fall into any class. E.g. Scrap Yards, night clubs and casinos.
110
What are Permitted Development Rights?
A national grant of planning policy, which allows certain building works and changes of use to be carried out without having to make a planning application.
111
Give an example of a permitted development?
A grocery shop (A1) changing into a shoe shop (A1).
A restaurant (A1) turning into a cafe (A1).
112
What are the limitations to Permitted Development Rights?
If PD rights have already been executed on the site, they cannot allow further development of some kind in the future.
PD right cannot override the express conditions of a planning decision.
PD rights cannot legitimise an otherwise unlawful development.
113
Talk me through the process of making an application.
Pre-application advice (contact local LPA and discuss requirements).
Assess difficulties and potentially revise proposals (Discuss with client).
Make a full or outline application via the planning portal.
LPA validates application and requests any missing documents.
LPA publicises and consults on application.
Application considered by planning officer and committee.
114
What are the different outcomes of a planning decision.
Permission is granted.
Permission is granted with conditions.
Application not decided in 8 weeks.
Permission is refused.
115
What documents are included with planning applications?
Standard application form.
Location plan.
Site plan edged red.
Ownership certificate.
Design and access statement.
Application fee.
116
What are the timescales with a planning application?
LPA has 8 weeks to determine an application, 13 weeks for a major project.
117
What is the difference between an outline application and a full application?
An outline app allows to test the principles of development without incurring the time and cost of preparing a full application.
A full application is when the intention is to build right away and is default method of application in a conservation area.
118
How do you appeal a planning decision?
Complete an application form and send the form to the Planning Inspectorate with accompany documents such as original application and notice of decision, plans and correspondence with LPA.
119
What is the Community Infrastructure Levy (CIL)?
A cost incurred through the development of an area by landowners or developers who have benefitted from the increase in land value from a planning decision.
120
What is a Compulsory Purchase Order?
A CPO is a mechanism within legislation in the UK that allows certain bodies which need to obtain land or property to do so without the consent of the owner
121
What is an Environmental Impact Assessment (EIA)
A systematic process to identify and evaluate the environmental effects of a proposed development prior to permission being granted.
122
What did the Town and Country Planning (Compensation) Amendment Regulations 2016 bring about?
They added a new class of development to the list of PD rights which enables light industrial (Class B2) to dwelling houses (C3) without need for planning permission.
123
What are the building regulations?
Building regulations set standards for the design and construction of buildings including alterations and are developed by the government and approved by parliament.
124
Where can you get further help for building regulations?
Department for communities & local government website.
Planning portal website.
Local Building Control Service or Approved Inspector.
Industry Technical Body if complex issue.
125
When do building regulations apply?
Erecting a new building
Extending or altering an existing building
Providing fittings and/or services within a building such as foul drainage, washing and sanitary ware and replacing a window.
126
What is the difference between building regulations and planning permission?
Planning seeks to guide the way our towns, cities and countryside develop which can include the use of land and buildings as well landscaping considerations.
Building regulations set standards for the design and construction of buildings.
127
What are the two types of Building Control Bodies?
Local Authority Building Control Service.
Approved Inspector Building Control Service.
128
What is the difference between local authority building control and approved inspector building control services?
Approved inspectors are companies or individuals authorised under the Building Act 1984 to carry out building control work in England and Wales. – Private.
Power to sign off work but can be more efficient.
A local authority service is a public service provided by a local authority building control team and can be quite slow.
129
Can you name me the list of approved documents?
A: Structural Safety
B: Fire Safety
C: Site Preparation and resistance to contaminates and moisture
D: Toxic substances
E: Resistance to the passage of sound
F: Ventilation
G: Sanitation, hot water safety and water efficiency
H: Drainage and waste disposal
J: Combustion appliances and fuel storage systems
K: Protection from falling, collusion and impact
L: Conservation of fuel and power
M: Access to and use of buildings
P: Electrical safety
Q: Security
R: Physical infrastructure for high speed electronic communications networks (January 2017)
Regulation 7: Materials and Workmanship.
130
What are the different types of building control notices?
Full Plans
Building Notice
Regularisation Notice
131
What is a full plans notice and what are the disadvantages of it?
This application is the most thorough and includes plans, specifications, and if necessary, structural calculations
Works to commercial buildings can only be submitted under a full plans application
Expensive to prepare detailed plans programme in enough time to complete plans, etc
132
What is a Building notice and what are the advantages and disadvantages?
Building notice applications are used when work is not complex and can only be used in domestic works.
Only a site plan needs to be prepared and less time processing application.
No approval notice Is given which may lead to work being altered site.
Cannot be used on commercial building / complex projects.
133
What is a Regularisation Certificate?
What are the disadvantages of a regularisation certificate?
Special type of application that can only be used where works have been carried out without consent.
Costs are 50% higher than if app had been made at right time
Opening up works will have to be undertaken
Regularisation certificates cannot be issued for electrical works
134
What timescales are involved in a typical building regulations application?
For full pans, a decision must be reached within 5 weeks, or a maximum of 2 months if agreed with the applicant.
For a building notice, a matter of days.
135
Currently, how much does it cost for a full building application?
Up to 925???
136
When would you expect building control to inspect the works on a new build project?
1. Commencement of works (statutory)
2. Excavations before concrete (statutory)
3. Preparation of oversite (statutory)
4. Damp proof course (statutory)
5. Drains – Foul and storm (statutory)
6. Drains test (statutory)
7. First floor joists
8. Roof membranes
9. Insulation
10. Occupation (statutory)
11. Completion (statutory)
137
What can an approved inspector do if the contractor’s works do not comply with the Building Act/Regulations?
Approved inspectors do not have formal enforcement powers.
Where there is defective work and refusal to rectify it, the AS will cancel the initial notice
If no AS takes on work, work reverts to Local authority
Local authority then has enforcement powers
138
What must the client do when they decide to appoint an approved inspector?
The client, or their representative, and the approved inspector must notify the local authority by submitting an ‘initial notice’.
139
What are the minimum travel distances for offices and shops in both one direction and where there is more than one direction?
18m in any one direction.
45m where there are more than one means of escape.
140
What are the minimum travel distances for industrial buildings in both one direction and where there is more than one direction?
For a normal hazard, 25m in any one direction and 44m where there is more than one means of escape.
Where there is high hazard, it is 12m in one direction and 25m if more than one means of escape.
141
How would you know what minimum travel distance to adhere to for industrial buildings
Part B makes it clear that it is the level of fire hazard associated with the processes and material being used that determines the appropriate travel distance.
Higher hazards includes manufacturing, storage of hazardous goods and materials including any compressed gas, any corrosive substances, etc.
142
What are the minimum widths of escape routes and exits?
If the maximum number of people does not exceed 60 the minimum width of the escape route and exit is 750mm.
If there is more than 220 people, the minimum width should be 1050mm.
143
What types of buildings and circumstances can a single escape staircase be used?
Small premises
An office building not more than 5 storeys high from GF providing that the travel distances from every point in each storey are either 18m or 45m and that each storey greater than 11m in height has an alternative means of escape
A factory not more than two stories above ground level if low risk and not more than one storey above GF level if of normal risk.
144
What does approved document B describe as a refuge and how large should they be?
Relatively safe waiting areas for short periods and should be no smaller than 900mmx1400mm.
145
When should refuge spaces be provided?
To each protected stairway affording egress from each storey
146
How does L2B describe a thermal element?
Means a wall, roof or floor which separates a thermally conditioned part of the building from the external environment or another part of the building which is unconditioned or an extension.
147
How does L2B describe renovation?
The provision of a new layer in the thermal element or the replacement of an existing layer, but excludes decorations.
148
How does L2B describe a Major Renovation?
Renovation of a building where more than 25% of the surface area of the building envelope undergoes renovation. Building envelope encompasses walls, floors, roofs, windows, doors, etc.
149
What does Part L2B say about the renovation or replacement of thermal elements?
Where the renovation of a thermal element is a major renovation or reflects more than 50% of the element’s surface area; the renovation must make reasonably provision of conserving fuel and power by limiting heat gains and losses and through thermal elements and other parts of building fabric.
150
Does the approved document require this in every circumstance?
No, only when it is technically, functionally and economically feasible to do so.
151
What is a U-Value?
U-Values measures how effective a material is as an insulator. The lower the U-value, the better the material is as a heat insulator.
152
Can you tell me the required U-Values for new roofs, new walls and new floors?
Pitched roof with insulation at ceiling level is 0.16 W/(m2.K)
Pitched roof with insulation at rafter level is 0.18 W/(m2.K)
Flat roof is also 0.18 W/(m2.K)
Walls are 0.28 W/(m2.K)
Floors are 0.22 W/(m2.k)
153
In terms of upgrading retained thermal elements, what are the minimum improved U-values that roofs, walls and floors should meet?
Pitched Roofs with insulation at ceiling level is 0.16
Pitched roof with insulation at rafter level is 0.18 W/(m2.K)
Flat roof is also 0.18 W/(m2.K)
Walls – cavity insulation is 0.55
Walls – external or internal insulation is 0.28
Floors are 0.25
154
With regards to U-Values, how would you measure economic feasibility?
A reasonable test is to achieve a simple payback period of 15 years or less.
155
What is a consequential improvement?
Additional work must be undertaken to comply with the building regulations to make an existing building more energy efficient where certain types of work is proposed.
156
In what circumstances does consequential work have to be undertaken?
Where the existing building has a total useful floor area exceeding 1000m or where proposed work consists of an extension, installation of fixed building service (other than renewable energy generator) or increasing the capacity of any fixed building service.
157
Can you give me any examples of consequential improvement work?
Undertaking any work recommended in the Recommendation Report accompanying an EPC.
Upgrading heating or cooling systems both over 15 years old.
Replacing existing windows and roof windows that have a U-value worse than 3.3 W/(m2.K).
158
What are the RICS Aims with the RICS Guidance note for RCAs?
Bring an element of uniformity into the approach to assessments;
Improve consistency and reduce the level of confusion
Demonstrate the level of professionalism that it is advisable to be shown by chartered surveyors.
159
What should you do when taking instructions for the prep of an RCA?
Clarify with client that report is for insurance purposes
Clarify the extent of the insurance cover. E.g. Tenant chattels?
Define physical parameters and boundaries of the site.
Obtain as much information as possible
160
In an RCA, what is Day One Reinstatement?
Claims are settled on a new for old basis at the time of the loss and comprises two sections. The declared value and an inflation provision.
161
In an RCA, what is the Declared Value?
The equivalent of a fixed price, lump sum competitive tender submitted by a suitable contractor for works to commence on site on the first day of the period of insurance together with all other costs.
162
In an RCA, what is the inflation provision?
A percentage uplift selected by the insurers to cover inflation during the insurance year. The estimate is based on anticipated construction costs and varies between 15 – 20%.
163
in an RCA, what is indemnity?
A method of placing the insured, as nearly as possible, in the same financial position after a loss as that they were in immediately before a loss.
164
With regards to RCAs, can you name some of the common variants of assessment?
Day One Reinstatement.
Second Hand value of building materials.
Site clearance and making safe costs only.
165
With regards to RCAs, what is the final assessment figure?
The total cost of completely rebuilding the property to be insured, the net rebuilding cost, together with any other allowances such as professional fees, demolition rates and statutory fees.
166
With regards to RCAs, what does the net rebuilding cost include?
The cost of rebuilding the whole building.
Any tenant installations for which the landlord has a responsibility to insure.
Allowance for modification to comply with building regulation and statutory requirements.
External works such as landscaping and drainage.
The location factor should also be considered and any other special adjustments.
167
With regard to RCAs, what should be included in the final assessment report?
A summary of the reinstatement cost.
A description of the property.
Any limitations as well as inclusions.
Extent of the site covered.
Duration of the rebuild period and photographs.
168
What is a Party Wall
A wall which forms part of a building and stands on lands of different owners.
169
What is the purpose of the Party Wall Act 1996.
The Party Wall etc Act 1996 regulates the relationship between neighbouring owners concerning specified construction work. It facilitates construction operations in the vicinity of boundaries.
170
What works are covered by the Party Wall Act 1996 Act?
Line of junction works
Works to a party wall (and certain other boundary structures)
Adjacent excavation works
171
What is an owner under the Party Wall Act 1996?
Someone with more than a yearly tenancy.
There can be more than one owner. For example, a freeholder, long lease holder or occupying tenant
172
What is a party structure?
A party wall, floor, or a partition separating different parts of a building, each with separate entrances.
173
What is a party fence wall?
A free standing wall that is not part of the building and stands astride the boundary.
174
What are special foundations?
Those in which an assemblage of beams or rods is employed for the purpose of distributing any load.
175
What is line of junction works?
Where nothing is built on the boundary line or where the only structure built is a free standing boundary wall which does not straddle the boundary line.
176
When is the building owner required to serve a Section 1 notice and what is the time period?
Party wall proposed to be built
Party fence wall proposed to be built
Boundary or external wall on building owners own land up to boundary line
One months’ notice before work due to commence.
177
What are the different Section 1 notices?
Section 1 (2) concerns the construction of a party wall or fence wall astride the boundary line and the BO must obtain express consent from AO.
Section 1 (5) is where the BO wishes to build a wall on their side of the line of junction only.
178
What is the purpose of Section 2 works and what would they typically include?
Grants rights to undertake specific works to certain types of boundary structures. Works include:
Underpinning, cutting into, reducing height, demolishing and rebuilding, repairing, etc.
179
What is the notice period for a notice under Section 2 of the Party Wall Act 1996?
Two months must be given.
180
What are the different Section 6 notices and what is the notice period which a BO must give?
Section 6(1) concerns excavations within 3m of a building or structure to a lower level that the bottom of the foundations of the AO.
Section 6(2) notice is excavations within 6m of a structure that will cut a line downwards at 45’ from the bottom of the existing foundation of the AO to a point in line with the outside face of the BO proposed foundations.
The BO must give one months’ notice for service of either notice.
181
What is mandatory to be accompanied with either of the section 6 Party Wall notices?
Drawings showing sections of new foundations and if possible, their relationship with the AOs foundations.
182
What are the requirements for a valid Notice under the Party Wall Act 1996?
In writing
Name and address of BO
Signed and dated
Served on all adjoining owners
State nature and particulars of intended works and intended commencement date
183
How can a Party Wall notice be served?
Under the Electronic Communications Act 2000, notices can be served on an owner electronically.
Notices can also be served via posting or delivered by hand
Can be addressed to the ‘Owner’ and delivered by hand to person or affixing to conspicuous part of the property.
184
What actions can AO take in response to a party Wall notice notice?
Do nothing
Agree to the work proposed
Dissent to the work proposed.
185
What happens if the BO has served a Party Structure Notice and the AO fails to respond?
If the AO falls to respond within 14 days, a dispute is deemed to have arisen.
The BO serves a request on the AO to appoint a surveyor in 10 days.
If AO fails or refuses to appoint a surveyor, the BO can appoint on for them.
186
What about the process under service under Section 6 Party Wall notice?
What about service of either of the Section 1 Notices?
The same as Section 1 and 2.
Under Section 1(2) Notices (building a party wall or party fence wall astride the line of junction) the BO may only build the proposed wall on their own side only but can proceed as soon as notice period lapses.
Under Section 1(5) (BO building up to line of junction on their own side only), if the AO fails to respond, it allows the BO to proceed with the works
Both of the outcomes allow the BO to allow the construction of projecting footings onto the AO land (as long as not Special foundations).
187
Under the Party Wall Act, When can the BO appoint a surveyor on behalf of the AO?
When the AO has not responded to the BO notice within 14 days and also the notice requesting them to appoint a surveyor within 10 days of that notice.
188
Under the Party Wall Act, What happens if the AO dissents to the works?
Each owner can appoint their own surveyor or agree to the selection of one surveyor, acting as the Agreed Surveyor.
189
Under the Party Wall Act, When can the AO serve a counter notice?
In relation to a Section 2 Notice as long as it is served within 2 months. The counter-notice must set out the limited additional works as may reasonably be required.
190
What are the typical contents of a party wall award?
Relevant drawings of notifiable work
Method statements
Limitations on time of work
Manner work can be carried out
The Schedule of Condition
Security arrangements
Noisy works
191
In Party Wall instructions, What must be agreed with the other surveyor when initially instructed?
The name and address of the Third Surveyor.
192
What is the procedure on the event that the parties cannot agree to a party wall dispute?
The surveyors should set out the points of contention with their appointing owners and the steps taken to address the issues. (Owners may wish to concede to save time and costs)
If not, a formal request in writing with all relevant docs to the third surveyor must be sent clearly defining the positions of the surveyors and that they need a decision and not just guidance.
The third surveyor can only make judgement on the issue that he has been asked to address and none others
He will publish his decision in the award and serve on surveyors to then serve on owners.
193
What is security of expenses under the Party Wall Act?
Depending on circumstance, the provision can be made by either party to indemnify the other on failure to complete a part of the works. E.g. Remedying works left incomplete
BO can request security from AO when a counter notice has been served requiring works to the benefit of the AO. Needs to be paid in one month of request by BO or not obliged to comply.
194
What is the appeal process under the Party Wall Act?
BO or AO can appeal an award made within 14 days of its service to the County Court.
If a notice is invalid (say, valid appointment doc. E.g. Not signed by husband and wife) the subsequent award and/or addendum award could be invalid as well.
195
Can you name some of the parts that comprise the CDM Regulations? (5 no)
Matters of interpretation and application
Client duties and how CDM 2015 affects domestic clients
General duties as well as those specific to designers, contractors, principle designers and principle contractors.
Application on all construction work and physical safeguards
Civil liability and revocation of other legislation.
196
What HSE Guidance supersedes the code of practice for CDM 2007?
Managing Health and Safety in Construction (L153)
197
Under CDM 2015, what is a Domestic Client?
People that commission building work on their own home or family member’s home. (Duties are placed on domestic clients but they may be passed on with written agreement)
198
What is a person day under CDM 2015?
One individual carrying out construction work for one normal working shift.
199
When is a construction project notifiable to the HSE?
Notifiable if work expected to:
1) Last longer than 30 days and have more than 20 workers working at the same time at any point on the project; or
2) Where project exceeds 500 person days.
200
How would the HSE be notified if a project is notifiable and who has the responsibility to ensure this is done?
A Form F10 is completed. The client has the duty to notify a construction project but in practice, the client nay ask someone else to notify on their behalf.
201
Can you list some of the duties of clients under the CDM Regs?
Make sure other duty holders are appointed.
Relevant information is prepared and provided to other duty holders.
Ensure that the principle designer and principle contractor carry out their tasks.
Welfare facilities provided.
202
How are the duties for client split under the CDM Regs?
Into two categories, duties that apply to projects with only one contractor
and those that apply with projects with over two contractors.
203
Under CDM 2015, what are some of the duties that apply with projects with just one contractor?
Contractor and the designer have the appropriate skill and experience
Ensure that the pre-construction information is provided as soon as possible and that a construction phase plan is in place before work.
Ensure that the minimum welfare facilities are set up:
- Sanitary conveniences
- Washing facilities
- Drinking water
- Changing Rooms & lockers
- Facilities for rest
204
Under CDM 2015, what are the duties of the client on a project with more than one contractor?
Ensure that a principle designer and principle contactor are appointed in writing.
Ensure that they comply with their duties once they are appointed.
205
Can you tell me some of the duties of principle designer under the CDM Regs
They must plan, manage, monitor and coordinate health and safety in the pre-construction phase of the project
Prepare and provide relevant information to other duty holders
206
Can you give an example of how a principle designer can plan, manage, monitor and coordinate health and safety?
Identifying, eliminating or controlling foreseeable risks.
Ensuring designers are carrying out their responsibilities.
207
What professional fees can a landlord claim from the tenant as part of a dilapidations claim?
Architect fees.
CA fees.
Principle designer fees.
Etc
208
What happens after the Principle Designer issues the PCI to the contractor?
The contractor issues their CPP.
209
In regards to a lease, what is a reduction in premium?
How does this relate to dilapidations claims?
