Dilapidations Flashcards
What must a surveyor not do when acting in a dilapidations claim?
They should not allow their professional standards to be advances to further their clients case. They should not provide a document that contains items that they know or should know are not true, properly sustainable or reasonably arguable - INTEGRITY
In the absence of a lease, or an express repairing clause how are the obligations dealt with?
Under common law
What are the obligations on a landlord at common law?
- To give full possession at the date of entry
- Once tenant is in possession, not to do anything to prevent possession
- Warrant that the premises is fit for purpose
- Continuing duty to keep premises tenantable, and wind and water tight, once they have been notified of any breaches
What are the obligations on a tenant at common law?
- To take possession at the date of entry
- To remain in possession over the course of the lease
- To use the premises for the intention they were let
- To take reasonable care, and to be liable for damage caused through their negligence
- To pay rent
How are common law liabilities transferred under a lease?
Mainly, through the repairing obligation. A form of words requiring the tenant to “keep and maintain in a good and substantial condition”. Additionally, the landlord may remove their warranty that the premises is fit for purpose, or that the tenant accepts that premises as being in a tenantable condition
Why is an understanding on the common law position important, even when there is a lease in place?
If the lease is silent on something, then it will revert back to the common law position. Therefore having an understanding of what the common law liabilities is important to be able to advise a client
What is tacit relocation?
Tacit relocation is where either the landlord or tenant fail to issue adequate notice to quit. In that case, the lease can continue for a year (or less if the lease was less), and all obligations will remain in place
What is a dilapidations claim?
The typical process of the allegation of the breach of an obligation under a lease/tenancy, generally in respect of the repair or use. Normally conveyed via a schedule of dilapidations
What is diminution in value?
Diminution in value is a measure of loss which has no statutory significance in Scotland. It is a valuation of the difference between a value of a premises in its current condition and the premises under the tenancy
What are extraordinary repairs?
Generally defined as extensive or substantial replacement or renewal required as a result of a significant defect caused by the passage of time, natural decay, latent/inherent defects, or an extraordinary event. For a tenant to be liable for extraordinary repairs there needs to be specific terms in the lease (i.e. regardless of the cause of damage)
What is an ordinary repair?
An ordinary repair is a repair considered to be within normal repair and maintenance, to ensure wind and watertight or in appropriate condition for the lease obligations
What is a schedule of dilapidations?
A document that notes the lease, obligations, alleged breaches, wants of repair (non-monetary)/repair works required, and possibly the estimated/actual cost to carry out the works. Usually prepared by a building surveyor, usually provided in Scott Schedule form to allow for tenant responses against specific breaches
What is tenantable condition?
Generally considered to be a condition that takes into account the age, character and locality of the premises and whether it is in a condition where a reasonably minded tenant would be likely to take on a lease of that premises on similar terms
What is the definition of a lease?
A lease is a contract where a landlord provides the tenant with the right to occupation of a premises for a period of time, in return for a payment for consideration (i.e. rent)
What are the common different types of lease?
- Full repairing and insuring (FRI)
- Internal repairing only (IRI
