Legal and Regulatory Compliance

Question 1

What is a Repairs Notice / Interim Schedule of Dilapidations

Answer 1

Notice given to a tenant by a landlord requiring them to repair the property mid-lease if the LL believes it is not being completed.
Jervis v Harris clause (and the piece of case law) gives LLs more flexibility to enter a property, complete the works themselves and then recover the costs from the tenant.

Question 2

What is a Part 36 Offer?

Answer 2

• A provision of the Civil Procedure Rules that encourages parties to settle a dispute prior to litigation.
• If a Part 36 offer is not accepted by the other party, they risk having to pay the other parties court fees and interest.

Question 3

What is Section 1 of the Party Wall (etc. Act) 1996?

Answer 3

• Concerns new structures on boundaries not already built on.
• Called a ‘Line of Junction Notice’
• 1 month notice period required

Question 4

What is Section 2 of the Party Wall (etc. Act) 1996?

Answer 4

• Concerns work to existing party structures (thickening, repairs, re-building etc, cutting into etc)
• ‘Party Structure Notice’ (Section 3 notice)
• 2 month notice period required

Question 5

What is Section 6 of the Party Wall (etc. Act) 1996?

Answer 5

• Adjacent Excavations
• Within 3 m from neighbouring building and to a greater depth, or
  *within 6 m where new foundations would be intersected by 45 degree line from base of exisitng.
• 1 Month notice period required

Question 6

What is Section 8 of the Party Wall (etc. Act) 1996?

Answer 6

• Rights of Access
• Creates statutory right of access for the purposes of executing works in pursuance of the act.

Question 7

What is Section 10 of the Party Wall (etc) Act 1996?

Answer 7

• The dispute resolution process
• Once notice served by BO, adjoining owner (AO) has 14 days to respond.
• AO can consent, request additional works, dissent or do nothing. No response in 14 days = dispute.
• 10-day notice then served requesting AO appoint a surveyor. No reponse = surveyor appointed for them.
• 3rd surveyor appointed as arbiter in case of dispute.

Question 8

What is the difference between a Type A and a Type B Party Wall?

Answer 8

• Type A - standing on the land of 2 owners.
• Type B - the part of a wall standing on land of one owner but that separates buildings of 2 owners.

Question 9

What are the Approved Documents?

Answer 9

A- Structure
B - Fire Safety
C - Site prep and resistance to moisture and contaminants
D - Toxic Substances
E - Resistance to the passage of sound
F - Ventilation
G - Sanitation and Hot Water Appliances
H - Drainage and Waste
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
O - Overheating
P - Electrical Safety
Q - Security
R - Communication Devices

Question 10

What are the MEES Regulations, and can you name some exemptions?

Answer 10

• Minimum Efficiency Standards
• 01/04/2018 - Min EPC E for all new commercial tenancies
• 01/04/23 - Above applies to all existing tenancies as well
• Some exemptions - all possible imporovements have been made and still below an ‘E’
• If 3rd Party Consent is required
• Carrying out the imporovements would result in a 5% loss in value of the property.

Question 11

What is the Dilapidations Protocol 2012?

Answer 11

• Pre-Action Protocol
• Legally enforceable guidlines and recommendations
• 56 day timelimit for responses
• Sets expectations for both parties prior to escalation

Question 12

How would you advise your client regarding upcoming MEES regulations. e.g. They had an office building with an EPC of E and wished to re-let?

Answer 12

• Only proposals currently, but highly likely minimum requirements will become more stringent.
• 2025 - Landlords must submit a valid EPC for every let property.
• 2027 - Properties must achieve Band C or submit another EPC to show highest EPC possible has been achieved using cost-effective measures.
• 2028 - LLs must submit another EPC for all let property
• 2030 - Properties must achieve Band B or submit another EPC to show highest EPC possible has been achieved using cost-effective measures.

Question 13

What is an EPC Plus Report?

Answer 13

An EPC Plus report gives an EPC rating, and provides recommendations for the most cost-effective upgrades that would increase the performance of a building. Often based on enegy modelling software.

Question 14

How can the removal of tenant ‘chattels’ impact on the vacant possession condition within a break clause?

Answer 14

• The ‘degree of fixity’ will determine whether an item is a ‘fixture’ or a ‘chattell’.
• Recent Case Law: ‘Riverside Park Ltd. v NHS Property Services’
• Partitioning left in building was not fixed to slab or soffitt and therfore easily removable.

Question 15

What is Regulation 4 of the Control of Asbestos Regulations 2012?

Answer 15

• This covers the duty to manage in non-domestic premises.
• Establishes ‘duty-holders’ - anyone with repair responsibilities or in control of the building.
• Duty holders must complile an asbestos management survey and a management plan (AMP).

Question 16

What is Regulation 5 of the CAR 2012 Regulations?

Answer 16

• Identification of the presence of asbestos.
• Supplements Reg 4 where not applicable.
• Creates legal duty for anyone carry out works to take steps to identify.
• Ususally means an R&D.

Question 17

What are the different work categories and arrangements that need to be in place for them, under the CAR 2012 Regulations?

Answer 17

• Non-licensed work: need risk assessment, control of exposure, trained workers and insurance.
• Notifiable non-licensed work: All the above plus notification to HSE, medical carried out every three years and health records.
• Licensed works: All above plus license in place, emergency arrangements and desingation of asbestos areas.

Question 18

What is classed as best practise for duty-holders under the CAR Regulations 2012?

Answer 18

• Find out if present
• Identify its condition
• Survey and sample for asbestos
• Keep a written record or register
• Act on the findings - the AMP
• Keep records up to date
• Provide info to those that need it

Question 19

What are the roles and responsibilities of the Principal Designer under the CDM Regulations 2015?

Answer 19

• Plan, manage, monitor and coordinate H&S in the Pre-Construction Phase
• Bring together Pre-Construction info and provide to contractor.
• Risk Control Hierarchy: Eliminate, Reduce, Isolate, Control, PPM, Discipline (ERIC PD)
• H&S File
• Designer’s Risk Assessment

Question 20

What is an F10 and when should it be used?

Answer 20

• Legal requirement under CDM Regs to notify HSE of a Construction Project.
• Project more than 30 days with more than 20 workers at any one time OR lasts more than 500 person days.
• Containts - Address, LA, description of works, contact details, planned start, duration, no. of operatives.
• Responsibility is with the CLIENT

Question 21

What legislation covers the mandatory registration of high rise buildings with 2 or more residential units in England? When is the Deadline?

Answer 21

• The Building Safety Act 2022 establishes the Building Safety Regulator.
• Principal Accountable Person must give floors, height, no. of resi units, year of build to BSR by 1st Oct 2023.
• High Rise defined as 18 m in height or 7+ floors with at least 2 resi units.

Question 22

What are the grounds for termination of a business tenancy that the Landlord can use for a lease that within the L&T Act 1954?

Answer 22

• LL must use a ‘Section 25’ notice.
• Must state one of the ‘grounds’ for refusing a new tenancy under Section 30:
• Failure to pay rent on time
• Persistent failure in meeting repairing obligations.
• If the LL can provide suitable alternative accomodation.
• The LL intends to demolish or redevelop building to an extent that possession is required.
• The LL intends to occupy for themselves.

Question 23

At Eign Gate in Hereford, you acted as an appointed surveyor. Can you explain your function in this role?

Answer 23

• It performs a statutory function, and an appointed surveyor has a duty to both parties in the dispute. This is different to the function prior to appointment when advising the client on the application of the Act for example, when the duty is just to one party.

Question 24

At Eign Gate, Hereford, what type of notice was used under the Party Wall Act?

Answer 24

• A ‘Party STructure Notice’ requiring 2 months notice. This was served (on ourselves as a T with at least 12 months interest in the property and the LL) and we dissented to the notice, requesting that the procedures of the Act were followed. At this point I was appointed as the AO surveyor).
• As the height of the wall was being increased, I undertook an inspection of the roof as there was a risk they could be damaged by falling debris.
• The BO surveyor completed the Schedule and I checked it.
• Once agreement reached on content of the schedule, it was appended to Award and served on owners.
• Owners advised of their right to appeal against the Award within 14 days of service.
• After the works, we carried out another inspection - damage to flat roof that the BO was required to put right. Compensation was not considered.

Question 25

What is the penalty for non-compliance with MEES?

Answer 25

Based on rateable value of property - up to £150,000 per breach

Question 26

What are some exemptions to compliance with the MEES Regulations?

Answer 26

• All cost-effective improvements have been made and the building is still below the minimum standard. This is verified by an independent assessor and cost-effective means meaures that would pay for themselves within 7 years.
• Works require 3rd party consent.
• Improvements would result in a 5% loss in market value of the property.

Question 27

At Cornwall St, you mention the level of control that the LL was trying to exert over the separation works and the advice you gave in connection. What was this?

Answer 27

They essentially wanted to get involved in the tendering process and have the final say and approval to the identity of the building contractor and professional team, as well as the terms of their engagement and the form of building contract.

Given the amount of control they were looking to exercise, I advised that it could potentially delay the matter and lead to a loss of control on your part where the landlord is having to sign off on almost everything.