Legal and Regulatory

Question 1

What is important about the Leasehold Property Repairs Act 1938?

Answer 1

A landlord can claim damages, during the term of the lease, for losses caused by a tenant’s breach of the repair covenants. The level of damages awarded would aim to put the landlord in the same position it would have been in had the breach not occurred (subject to the usual rules with regard to causation, remoteness and mitigation of loss). A landlord’s right to claim damages is also restricted by Section 1 of the Leasehold Property (Repairs) Act 1938 (‘LPRA 1938’) and by Section 18(1) of the LTA 1927.

Question 2

When does the Leasehold Property Repairs Act 1938 apply?

Answer 2

Lease run for at least 7 years. At least 3 years left on lease.

Question 3

What is deemed Building Work under the Building Act 1984?

Answer 3

• Building Work is defined in Regulation 3 of the Building Regulations.
• The definition means that the following types of project amount to ‘Building Work’:-

o The erection or extension of a building.
o The installation or extension of a service or fitting which is controlled under the regulations.
o 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.
o The insertion of insulation into a cavity wall and the underpinning of the foundations of a building.

Question 4

Who is responsible for ensuring compliance with the Building Regulations?

Answer 4

• The primary responsibility for achieving compliance with the regulations rests with the person carrying out the building work.
• If a client is carrying out the work in their name, the responsibility will be theirs.
• If the client employs a builder the responsibility will usually fall to the builder they are appointing however they should confirm this position at the very beginning.
• Client’s should also bear in mind that if they are the owner of the building, it is ultimately the Client who may be served with an enforcement notice if the work does not comply with the regulations.

Question 5

What is a plans certificate?

Answer 5

• This certificate is issued by Building Control and confirms the plans and details provided have been reviewed and confirmed to comply with the Building Regulations.

Question 6

When are consequential improvements triggered for non-domestic buildings under part L of the Building Regulations?

Answer 6

• When a building is over 1,000m2 and the works involve significant extension or refurbishment and also when extending or replacing a fixed building service.
• If this is the case then 10% of the value of the works should be spent on improvements.
• The costs must be reasonable with a payback period within 15 years.

Question 7

What enforcement options are available under building regulations?

Answer 7

• If a person carrying out building work contravenes the Building Regulations, the local authority or another person may decide to take them to the magistrates’ court where they could be fined for the contravention.
• This action will usually be taken against the builder or main contractor, although proceedings must be taken within 6 months of the offence (section 127 of the Magistrates Courts Act 1980).
• Alternatively, or in addition, the local authority may serve an enforcement notice on the owner requiring them to alter or remove work which contravenes the regulations (section 36 of the 1984 Act).
• If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner.

Question 8

Give 4 examples of where planning permission is required?

Answer 8

• A new build construction situated on a vacant site.
• A new build extension that is not a permitted development.
• A change of use that is not a permitted change of use.
• The increase in the height of a fence adjacent to a highway above 1m in height.

Question 9

What information is contained within a planning application?

Answer 9

• Name of client.
• Name of agent.
• Site address.
• Details of the works.
• Details of proposed materials.
• Plans and elevation drawings.
• Access statements.

Question 10

What enforcement action can be taken if works do not have planning permission?

Answer 10

• A planning contravention notice can be issued requiring the owner to provide information to the local authority.
• The local authority can enter land and property with 24 hours’ notice to investigate any suspected breaches.
• Stop Notices can also be issued to suspend ongoing works.

Question 11

Is there a limit as to when enforcement actions can be taken?

Answer 11

• Four years is the time allowed for an authority to take enforcement action where the breach comprises either operational development (the carrying out of unauthorised building, engineering, mining or other operations) or change of use to use as a single dwellinghouse.
• Everything else is within 10 years from completion of the works.

Question 12

What is the NPPF?

Answer 12

• The National Planning Policy Framework sets out the Government’s planning policies for England and how these are expected to be applied.
• The National Planning Policy Framework (NPPF) was published on 27 March 2012.
• It is designed to make the planning system less complex and more accessible, to protect the environment and to promote sustainable growth.

Question 13

What are the policies behind the NPPF?

Answer 13

• Sustainable development - At the heart of the NPPF is a presumption in favour of sustainable development.
• Community decision making - To give decision making power back to the local communities with neighborhood plans and therefore changing to a decentralised decision making process is going to lead to greater variation.
• Town Centre renewal — Aims to encourage town centre vitality suggesting that edge of town sites should only be used if connected to town centres or if no viable town centre sites are available.
• Housing — Identify and update annually a supply of deliverable sites sufficient for a 5 year supply of housing.

Question 14

What are the stages of a dilapidations

Answer 14

Stage 1: Preparation (Obtain all relevant information).
* Stage 2: Inspection (Establish original condition, standard of repair, take into consideration age, character and location.
* Stage 3: Preparation of Schedule of dilapidations setting out the obligations required under the lease, the breaches thought to have taken place along with any identified cost of remedial works required in order to rectify the breaches.
* Stage 4: Quantified Demand is a document issued setting out:-
o The Cost of the Repair Works.
o The loss of value to the property.
o Loss of rent and services charges.
o Rates.
o Insurance.
o Security.
o Utilities.
o Cleaning.
o Finance Costs.
o Professional Fees incurred.
* Stage 5: The response and negotiation (Under pre-action protocol, surveyors should meet within 26 days).

Question 15

What are Part 36 Offers?

Answer 15

• A part 36 offer is a written offer to settle which must specify a period of not less than 21 days during which it can be accepted.
• If it is not accepted within the time period and the other party does not achieve a higher value than the one contained within the Part 36 Offer, there will be cost consequences for the claimant.

Question 16

What are Calderbank Offers?

Answer 16

• A Calderbank offer provides greater flexibility than a Part 36 offer because it is not governed by strict court rules.
• This is a great advantage because it allows the party making the offer (the ‘offeror’) to be creative when making their offer, especially when putting forward terms about the length of time the offer remains open for acceptance, costs and payment issues.
• The price for flexibility is that Calderbank offers, if accepted, create a binding contract between the parties.
• A Calderbank offer can be a useful tool to settle disputes where Part 36 does not apply, for example in cases allocated to the small claims track and arbitration proceedings.

Question 17

What is the Landlord and Tenant Act 1985?

Answer 17

• The Landlord and Tenant Act 1985 is the primary UK legislation for governing the minimum rights and responsibilities of both Landlord and Tenants.
• The Act was introduced in 1985 and is applicable to all short leases of less than seven years.
• Key obligations of the Landlord include:-
  o To keep in Repair the Structure and Exterior of the Dwelling including drains, gutters and external pipes.
  o To keep in repair and proper working order the installations in the dwelling for the supply of water, gas and electricity.
  o To keep in repair and proper working order the installations in the dwelling for space heating and heating water.
• Key obligations of the Tenant include:-
  o Ensuring the property is clean.
  o Ensuring the property is not damaged by themselves or anyone else.
  o Ensuring the property is looked after and general maintenance is carried out such as changing fuses, light bulbs and unblocking sinks if required.

Question 18

What is the Law of Property Act 1925?

Answer 18

• Prior to 1925, the purchase of land was extremely difficult for potential purchasers.
• The process was lengthy and required extensive investigation into the seller’s right and title to sell the land.
• The main object of the 1925 legislation was to facilitate and cheapen the transfer of land.
• In particular, sections 52 and 53 provide that, subject to limited exceptions, all conveyances of land (or interests therein) must be in writing, and where required, by way of deed.

Question 19

Defective Premises Act 1972

Answer 19

• The Defective Premises Act 1972 is one of the primary pieces of UK legislation that stipulates the liability of landlords’ and contractors for poorly constructed and poorly maintained buildings in addition to any injuries that may result because of this.
• Contractors and their sub-contractors hold a duty of care to the occupiers of property they construct or modify.
• Landlords also hold a duty of care towards their tenants and third parties who might be injured by their failure keep their property in a good state of repair.
• Section 1 of the Act lays out the duty of care and who it applies to. The duty applies to any person taking on work for or in connection with the provision of a dwelling and is something including not only builders but also electricians, plumbers and other subcontractors.
• Section 4 establishes a general duty to repair and maintain property owed by landlords to anyone who could reasonably be expected to be harmed by a breach, this covers tenants, their friends and family and also trespassers.

Question 20

What are The Civil Procedure Rules 1998?

Answer 20

• The Civil Procedure Rules were introduced to provide rules and practice directions for dispute procedures.
• The rules were designed to improve accessibility to justice by improving the speed of making legal proceedings in addition to making them cheaper and easier to understand for those outside of the legal profession.
• The Small Claims track was introduced for claims with a value of less than £10,000
• The Fast Track was introduced for claims with a value of less than £25,000
• Pre-action Protocols were also introduced to reduce the number of outstanding issues prior to legal proceedings commencing which encourages:-
  o The early exchange of information.
  o Aiding settlement of the claim without commencement of legal proceedings.
  o Produces a foundation for efficient case management where litigation cannot be avoided.

Question 21

What is the Party Wall Act 1996?

Answer 21

• The Party Wall Act enables land and building owners to undertake certain specific works on, adjacent to, adjoining premises while giving protection to potentially affected neighbours.
• In addition, the act provides for a mandatory dispute resolution procedure which is decided by a statutorily appointed surveyor.

Question 22

What is a Party Wall?

Answer 22

• A Party Wall is a wall standing on the land of two owners or the part of a wall standing on the land of one owner that separates the buildings of two owners.

Question 23

Please explain your understanding of the different sections of the part wall act, when they are relevant and what notice period applies?

Answer 23

Question 24

Under Section 6, what notices and timescales apply if the excavation is 6m or less?

Answer 24

Question 25

When is serving a notice not required?

Answer 25

• Notices are not required for minor non disruptive works such as:-
  o Plastering.
  o Screws.
  o Chasing in wires or plugs.
  o And when consent is received from the adjoining owner and occupiers before commencing work.

Question 26

What items are included within a Party Wall Notice?

Answer 26

• The Name of the Building Owners (those proposing the work).
• The Name of the Adjoining Owner (those potentially affected by the work).
• Indication that the works are notifiable under the act.
• Proposed start date of the works in accordance with notice periods required under the act.
• Addresses for correspondence.
• A description of the works.
• Drawings.
• Structural Information.

Question 27

Please explain your understanding of the procedure for serving a party wall notice?

Answer 27

• When a notice is served the adjoining owner can:-

o Provide written consent within 14 days from the date of the notice.
o Provide written consent with conditions (which may be refused) in writing within 14 days.
o Refuse consent which will commence a dispute resolution process.
o Not respond which will result in the matter being deemed to be in dispute after 14 days.
o Serve a counter notice requesting additional works be done at the same time which may result in a cost implication to the adjoining owner.

• If consent is not obtained or notice is ignored, the act facilitates the appointment of an independent surveyor to act on behalf on the adjoining owner.
• Where a dispute does arise, there is an agreed surveyor route available which is often the more cost effective route for the building owner.
• This arrangement can only be made by agreement from both parties in writing.

Question 28

Outline the information required during Gateway 1 of the BSA

Answer 28

• Ensures that fire safety considerations are inherent within the design proposals of relevant buildings before planning permission is granted.
• A fire statement must be provided

Question 29

Outline the information required during Gateway 2

Answer 29

• Building control approval stage prior to works commencing
• BSR must approve the application
• Plans must outline exactly how compliance with functional requirements will be met
• Registered Building Inspector will be assigned to the submission
• Must provide:
  o Comprehensive outline of the works
  o Information about the building itself (site location plan, fire and emergency file) and people involved, client, PD, PC
  o Provide construction control plan – how the works will be managed for BC purposes,
  o Provide a change control plan outlining how any changes will be considered

Question 30

Outline the information required during Gateway 3

Answer 30

• Ensures BSR has relevant information to issue completion certificate
• Must ensure Golden Thread is accounted for – comissioning certificates etc
• Must accompany the signed declaration form that works have been satisfactorily completed
• Must have sufficient evidence that what was built reflects the approved plans

Question 31

What is normally included in a planning application?

Answer 31

Application form, site location plans, completed ownership certificate, plans and drawigns, D&A statement, Heritage statement

Question 32

What is the fine for non-compliance with the BSA 2022?

Answer 32

Unlimited fine and or 2 years maximum imprisonment.

Question 33

What was the result of the Jervis vs Harris case?

Answer 33

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.