Legal & Reg Flashcards

1
Q

LV 3 -Why was the Lease complicated at Burlington House?

A
  • GSL has occupied some 13,900 sq. ft of the east wing of the New Burlington House complex since 1874 (i.e. 149 years).
  • However, the formal Lease that details your potential liability has only been in existence since 1st February 2015.
  • In essence we are looking at your 150-year occupation through the lens of only a 10-year liability.
  • This means that any fit-outs, alterations and modifications that have been undertaken prior to this date should not fall under your liability.
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2
Q

LV 3 -Options and Strategy Nr 1

A

Do nothing and await the Landlord’s formal service of a Schedule of Dilapidations once you have vacated.

Pros – you know the quantum of your liability.

Cons – your only option is to negotiate a financial settlement.

You are unable to undertake the repair works as you are no longer in occupation.

You would potentially be liable for other Heads of Claim that the Landlord would apportion to you, such as loss of rent & service charge whilst the works are being undertaken.

Please note that dilapidations law does not oblige a landlord to commence dilapidations discussions prior to expiration of a lease term.

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3
Q

LV 3 -Options and Strategy Nr 2

A

Undertake works that you believe you are liable for whilst you are in occupation.

Pros – you are in control of what works are undertaken.

You are able to seek competitive quotations;

You limit the other Heads of Claim that the Landlord would otherwise apportion to you such as loss of rent whilst the works are being undertaken.

Cons – You are second-guessing what the Landlords sees as your liability.

You may have been able to negotiate a settlement figure that was less than the cost of doing the works.

You would incur management time to project manage the works.

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4
Q

LV 3 -Options and Strategy Nr 3

A

Start early discussions with the Landlord regarding your potential exit.

Pros – by involving the Landlord you will gauge what their future intentions are for the building and if this is a total refurbishment then some of the repair works that you are liable for could be negated by the rule of supersession

You are not having to second-guess what the landlords see your liabilities as being as the works are undertaken with the landlords agreement.

Ability to procure some of the recommended works before the end of the term and negotiate settlement of a residual claim for the works not undertaken if a claim is subsequently received.

Cons – Prior to commencing these discussions we would suggest that some prior works are undertaken e.g. fixed electrical testing, etc so that GSL comes across as a reliable and competent tenant that can be trusted.

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5
Q

What is Supersession?

A

The landlord cannot claim to repair something that they knowingly will be removing in the near future.

These claims are intended to allow the landlord to recover their losses as a result of dilapidations, but they cannot profit from them. So if for example the landlord does not intent to reinstate the property, perhaps if the property is to be demolished or refurbished, this must be taken into account, that is, works that might otherwise have been claimed for have been superseded and are removed from the claim.

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6
Q

LV 3 -Options available for Managing Liability

A

1) Occupation since 1874 HOWEVER the formal lease detailing liability has only been in existence since 2015- This means that any fit-outs, alterations and modifications that have been undertaken prior to this date should not fall under your liability.

2) The GSL’s Landlord is the Ministry of Housing, Communities and Local Government. It remains to be seen whether the Landlord will be less ‘aggressive’ with you on any negotiations with you, compared to how a commercial sector landlord would act.

3) The property is Grade II* listed and within the Mayfair Conservation area – this means that any works must be undertaken whilst being mindful of any required Listed Building Consents and approvals.

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7
Q

What is a Dilapidations claim?

A

The overall process associated with an allegation of a breach of lease/tenancy in relation to the condition and/or use of the property, typically as identified in a Schedule of Dilapidations, Quantified Demand and/or Diminution Valuation.

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8
Q

What is Diminution Valuation?

A

A valuation prepared in order to calculate the diminution in value of a landlord’s property Incurred as a result of alleged breaches. The document is usually prepared by a specialist valuation surveyor.#

Diminution in Value refers to the loss of value, if any, in the property that was leased due to the dilapidations. According to legislation, a landlord’s damages, or compensation, for dilapidations is capped at the lower of the Cost of the Remedial Works, or the Diminution in Value.

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9
Q

What is a Schedule of Dilapidations?

A

a document that identifies:
* relevant lease/tenancy obligations
* alleged breaches of those obligations
* in certain circumstances remedial works that have
been completed or are proposed in order to rectify
each alleged breach and
* potentially the estimated or actual cost incurred in
rectifying those breaches.

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10
Q

What are the types of Landlords Schedule of Dilapidations?

A

Interim Schedule of Dilapidations: a Schedule of Dilapidations prepared in contemplation of remedy of any alleged breaches during the contractual term of the lease, and not relating to yield-up obligations.

Terminal Schedule of Dilapidations: a Schedule of Dilapidations prepared at or shortly after the end of the lease term. This phrase is also commonly used in relation to a Schedule of Dilapidations prepared in anticipation of the end of the lease term, which includes reference to yield-up obligations.

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11
Q

What is a Scott Schedule?

A

Scott Schedule: a Schedule of Dilapidations with additional columns to enable the parties to set out their respective views. The document is usually prepared by a building surveyor.

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12
Q

RICS Guidance Note for Dilapidations?

A

Dilapidations in England and Wales, 2016

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13
Q

What are the different types of Listed Buildings?

A

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14
Q

What is the importance of GSL being Grade 2*?

A

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15
Q

What are approved documents?

A

The ‘building regulations’ established standards that had to be achieved in the construction of buildings.

The ‘approved documents’ provide guidance for how the building regulations can be satisfied in common building situations.

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16
Q

What is approved Document Part M?

A

Access to and use of Buildings

17
Q

What are Building Standards e.g. BS 8300 2018?

A

Design of an accessible and inclusive built environment.

18
Q

What are the three main types of asbestos?

A
  • Chrysotile (least dangerous) / white asbestos: Most common found in pipe lagging, loose fill insulation, fire blankets, floor material,
    Artex and reinforced plastics.
  • Amosite / Brown asbestos: Asbestos Insulation Board (AIB).
  • Crocidolite (most dangerous) / Blue asbestos: Spray on insulation, pipe lagging, loose fill insulation, gaskets and cement sheeting.
19
Q

What makes asbestos removal licenced?

A
  • Where worker exposure to asbestos is NOT sporadic and of low intensity.
  • Where the risk assessment cannot clearly demonstrate that the control limit will not be exceeded (0.1 f/cm3 averaged over a 4 hour period).
  • Where works are on an asbestos coating.
  • Where works are on AIB where the risk assessment demonstrates the work is no short duration work (short duration being when working with ACMs for no more than 2 hoors in a seven day period and no one person works for longer that an hour in that two hour period).
  • HSE gives guidance on what works are licensed but ultimately based on risk.
20
Q

Licensable Asbestos Work

A

Most higher-risk work with asbestos must only be done by a licensed contractor. Licensable work with asbestos is;

  • where worker exposure to asbestos is not sporadic and of low intensity;
  • where the risk assessment cannot clearly demonstrate that the control limit will not be exceeded ie 0.1 asbestos fibres per cubic centimetre of air (0.1 f/cm3) (averaged over a four hour period); or
  • on asbestos coating;

E.G.
- removing sprayed coatings (limpet asbestos)
- removal or other work which may disturb pipe lagging
- any work involving loose fill insulation
- work on asbestos millboard

21
Q

is my work Notifiable Non-Licensed Work (NNLW?)

A

you MUST consider;

1) The type of work (Maintenance, removal, encapsulation, air monitoring/ control)

2) The asbestos type

3) The materials condition

E.G. large-scale removal of textured decorative coatings using steaming or gelling methods (eg beyond that required for maintenance activities such as installation/replacement of smoke alarms and fittings)

asbestos cement products (eg roof sheeting) where the material has been substantially damaged or broken up (eg as a result of fire or flood damage)

22
Q

How do you decide to manage or remove Asbestos?

A
  • Carry out a risk assessment.
  • Decide if its possible to carry out the building or maintenance work avoiding the risk of asbestos exposure all together.
  • If that’s not possible, identify who might be at risk and the level of possible asbestos exposure from any work.
  • On this basis, decide what work methods are necessary to provide effective control of the risks.
23
Q

How many different types of asbestos survey are there and when would you use each?

A

1) Management survey: The standard survey that aims to locate, as far as reasonably practical, the presence and extent of any suspected ACMs in a building. They often involve minor intrusive work.

2) Refurbishment & Demolition Survey: This form of survey is needed before any refurbishment or demolition work is carried out (unless building constructed after 1999 or had now fit out before then). The survey is used to locate and describe, as far as reasonably practical, all ACMs in the area where the refurbishment works will take place / the entire building if to be demolished. The survey is fully intrusive and involves destructive inspection as necessary to gain access to all areas, even those hard to reach.

24
Q

What are the Regulations relating to Asbestos?

A

Control of Asbestos Regulations 2012

Regulation 4 of the Control of Asbestos Regulations 2012 obliges the ‘dutyholder’ to manage the risk from asbestos in non-domestic premises, so to ensure that workers are no longer knowingly exposed to any potential or real risk.

e.g. Take reasonable steps to identify asbestos within their premises, the amount present and its condition. This will probably involve carrying out an asbestos audit.

25
Q

What is DDA Compliance?

A

Disability Discrimination Act 1995 - Now Equity Act 2010

26
Q

What are the types of Planning Drawings?

A

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27
Q

What are the Construction (Design and Management) Regulations 2015?

A
  • Statutory regulations that ensure the health and safety issues are properly considered during a projects’ development so that the risk of harm to those who build, use or maintain structures is reduced.
28
Q

Who are the duty holders within CDM 2015?

A

Client
Principal Designer
Principal Contractor
Designers
Contractors

29
Q

What is the clients responsibility under CDM 2015?

A

The client may not be carrying out any of the work themselves, but they have important legal duties under CDM* including appointing other duty holders and making sure duties are carried out, allowing sufficient time and resources, and ensuring relevant information is prepared and provided.

If they do not appoint a PD or PC they are then required to undertake the PD / PC duties themselves under the CDM 2015 regulations.

30
Q

What is the Principle Designer responsibility under CDM 2015?

A

The principal designer has responsibilities for preparing and providing information, and planning, managing and monitoring the pre-construction phase health and safety arrangements. This includes identifying and controlling risks during project preparation, and ensuring other designers carry out their duties.

Where a client does not appoint a principal designer, they automatically become responsible for the responsibilities of the Principal Designer (apart from domestic clients where the principal designer can be appointed automatically).

31
Q

What is the Principle Contractor responsibility under CDM 2015?

A

This role must be appointed by the client on any project with more than one contractor.

Principal contractors are responsible for planning, managing, monitoring and coordinating the construction phase of the project, including preparing documents, organising, cooperating, managing and liaising with other duty holders. They must ensure site inductions are provided, prevent unauthorised access, provide welfare facilities and consult and engage workers on health and safety matters.

32
Q

What is the Designer responsibility under CDM 2015?

A

Any person preparing or modifying designs for a building, product or system relating to construction work is a designer under CDM.

As CDM duty holders, designers must eliminate, reduce and control foreseeable risks that may arise from the design during construction or future maintenance. Designers must also provide information to other members of the project including information for the pre-construction information and health and safety file.

33
Q

What is the Contractor responsibility under CDM 2015?

A

Contractors are those who carry out the construction work. This could be a scaffolder, a bricklayer, an electrician, or the main contractor.

Contractors need to plan, manage and monitor the construction work under their control to that is carried out safely, coordinate their activities with other contractors, and comply with directions from the principal contractor and principal designer.

34
Q

What does RIDDOR stand for?

A

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013

35
Q

What is RIDDOR?

A

RIDDOR puts duties on employers, the self-employed and people in control of work premises (the Responsible Person) to report certain serious workplace accidents, occupational diseases and specified dangerous occurrences (near misses).

36
Q

What is the purpose of RIDDOR?

A

To allow the Health & Safety Executive and UK government to keep a record of occupational incidents that occur within different industries which allows the HSE to implement change is specific areas to make industries safer.

37
Q

Who is responsible for reporting incidents under RIDDOR? How should they be recorded?

A
  • The responsible person (the person who is in control of the premises, so when on site it would be the principal contractor –
    site manager).
  • Reportable incidents should be reported to the HSE via hotline or online portal.
  • Where there are more than 10 employees present on a construction site, there should be an accident book kept in an
    accessible location.
38
Q

What is section 18(1) of the Landlord and Tenant Act 1927

A
  • Section 18(1) of the Landlord and Tenant Act 1927 is often referred to as the “statutory cap on damages” as it places a statutory cap on the amount of damages a landlord can recover from a tenant for breach of their repairing covenants in a lease.
  • Section 18(1) essentially has two limbs:
  1. Damages from a tenant for a breach of their repair covenant cannot be more than the reduction in value of the property as a result of the breach (DIMINUTION VALUATION).
  2. No damages are to be paid for breach of repair covenant for works that will be rendered valuless by a landlord’s intended structural alterations. (SUPERSESSION)