legal / regulatory compliance

Question 1

What are the Building Regulations?

Answer 1

The Building Regulations are made under powers provided in the Building Act 1984, and apply in England and Wales.

They exist to ensure the health and safety of people in and around all types of buildings (domestic, commercial and industrial).

They also contain provisions for energy conservation, access to and the use of buildings.

Question 2

What is deemed to constitute Building work under the Act?

Answer 2

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.

о The installation or extension of a service or fitting which is controlled under the regulations.

о 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. The insertion of insulation into a cavity wall and the underpinning of the foundations of a building.

Question 3

What are the approved documents?

Answer 3

The approved documents provide guidance on how the Building Regulations can be satisfied.
* They have legal status under the Building Act 1984 and there are 14 Approved Documents in total.

Question 4

Can you please name some of the approved documents?

Answer 4

A-Structural.
B-Fire Safety.
C- Site preparation and resistance of moisture.
D-Toxic Substances.
E-The resistance to the passage of sound.
F-Ventilation.
G-Hygiene.
H-Drainage and waste disposal.
J - Combustion appliances and fuel storage systems.
* K-Protection from falling, collision and impact.
L-Conservation of fuel and power.
M-Access to and use of buildings.
P-Electrical safety.
Q-Security.

Question 5

How would you get building regulations approval for a project?

Answer 5

Anyone wanting to carry out building work which is subject to the Building Regulations is required by law to make sure it complies with the regulations and to use one of the two types of Building Control Service available:-
The Building Control Service provided by your local authority.
о The Building Control Service provided by approved inspectors.

Question 6

Who is responsible for ensuring compliance with the Building Regulations?

Answer 6

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 7

What is the difference between Local Authorities and Approved Inspectors?

Answer 7

Local authorities are responsible for ensuring work complies with the Building regulations.
Approved Inspectors are approved by the local authority to inspect, supervise and authorise building works against the regulations.

Question 8

Why would you opt to use an approved inspector?

Answer 8

Because they are generally seen to be more responsive and open to giving advice than local authorities.

Question 9

Are there any timeframes involved with the appointment of an approved inspector?

Answer 9

If you appoint an approved inspector they need to serve an initial notice on the council and that has to be validated 5 working days before the project commences.

Question 10

What are the 2 types of Building Regulations Application?

Answer 10

• Building Notices - are more suitable for minor residential alterations or extensions. No formal plans need to be issued for approval as the work is reviewed via site inspection. Work can be commenced 48 hours after issuing the building notice however the
  Building Control Officer must be notified when the works are being carried out so they can undertake an inspection.

Full Plans application - where detailed plans, specifications and structural calculations are submitted to the council. These are checked by the local authority to ensure they meet the necessary regulations. Generally approval is given within 8 weeks although this can vary between local authorities. When the plans are satisfactory a formal approval is provided. In some cases a notice of rejection may be issued if they are not satisfactory.

Question 11

What is a plan certificate?
*

Answer 11

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 12

What is a final certificate?

Answer 12

Following completion of the works, a Final Certificate will be issued by the local authority if the actual works comply with Building Regulations.

Question 13

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

Answer 13

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 14

What enforcement options are available under building regulations?

Answer 14

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 15

I notice that you were involved in the demolition and refurbishment for a church vestry. What approvals did you require prior to undertaking the demolition?

Answer 15

Demolition is dealt with under the Building Act 1984.
Generally, it requires six weeks prior notice to be given to the Local Authority Building Control before demolition begins.

The Local Authority Building Control may decide to issue a notice within six weeks on receipt of the notification to specify conditions that need to be met which may include precautions to protect adjoining properties and the public.

Demolition work must also comply with the Construction (Design and Management) Regulations and a health and safety plan produced by the principal contractor.

Question 16

Give 4 examples of work where planning permission is required?

Answer 16

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 17

What information is contained within a planning application?

Answer 17

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

Question 18

What is the timeframe for planning consent?

Answer 18

8 weeks from the validation of the application.
Listed building consent can be longer.

Question 19

What recourse is available in the case that permission is rejected?

Answer 19

• If I felt there were grounds to appeal then I could have prepared an appeal form stating the reasons for the appeal with evidence.
  This can be appealed in the courts within 6 months of the decision.

Question 20

What enforcement action can be taken on someone completing works on a listed building?

Answer 20

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 21

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

Answer 21

Change of use to a single dwelling house is within 4 years from completion of the works.
Everything else is within 10 years from completion of the works.

Question 22

What is NPPF?

Answer 22

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 23

What are the policies behind the NPPF?

Answer 23

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 24

What is a listed building?
*

Answer 24

A listed building is a building that has been placed on the Statutory List of Buildings of Special Architectural or Historic Interest.

Question 25

How is a building listed?
*

Answer 25

In England, to have a building considered for listing or de-listing, the process is to submit an application form online to English Heritage.
The applicant does not need to be the owner of the building to apply for it to be listed. English Heritage assesses buildings put forward for listing or de-listing and provides advice to the Secretary of State on the architectural and historic interest.
The Secretary of State, who may seek additional advice from others, then decides whether or not to list or de-list the building.

Question 26

Under what legislation is a building listed?

Answer 26

In England and Wales the authority for listing is granted to the Secretary of State by the Planning (Listed Buildings and Conservation Areas) Act 1990.

Question 27

What classes of listed building are there?

Answer 27

There are three types of listed status for buildings in England and Wales:-

Grade I Buildings are of exceptional interest with just 2.5% of listed buildings being Grade I.

Grade II* Buildings are particularly important of more than special interest with around 5.8% of listed Buildings falling into this category.
Grade II Buildings are of special interest warranting every effort to preserve them with around 90% of listed Buildings falling into this category.

Question 28

Why are buildings listed?

Answer 28

The criteria for listing include architectural interest, historic interest and close historical associations with significant people or events.
The criteria include:
o Age and rarity - The older a building is, the more likely it is to be listed. All buildings erected before 1700 that contain a significant proportion of their original fabric will be listed. Most buildings built between 1700-1840 are listed. After 1840 more selection is exercised and particularly careful selection is applied after 1945. Buildings less than 30 years old are rarely listed unless they are of outstanding quality and under threat.
Aesthetic merits - The appearance of a buildings can also play a deciding factor however buildings that have little visual appeal may be listed on grounds of representing particular aspects of social or economic history.
O Selectivity - Where a large number of buildings of a similar type survive, the
policy is only to list the most representative or significant examples.
о National interest - Significant or distinctive regional buildings for example those
that represent a nationally important but localised industry.

Question 29

What part of the building is listed?

Answer 29

Although the decision to list a building may be made on the basis of the architectural or historic interest of one small part of the building, the listing protection nevertheless applies to the whole building.
* Listing applies not just to the exterior fabric of the building itself, but also to the interior, fixtures, fittings, and objects within the curtilage of the building even if they are not fixed.

Question 30

What about the curtilage of a building?

Answer 30

Any buildings or structures constructed before 1 July 1948 that fall within the curtilage of a listed building are treated as part of the listed building and therefore approval must be sought before altering.
The effect of a proposed development on the setting of a listed building is a material consideration in determining a planning application.
Setting is defined as “the surroundings in which a heritage is experienced”.

Question 31

How can a listed building be de-listed.

Answer 31

In the same way as it is listed an application is made to English Heritage and they advise the secretary of state who makes the decision.
* De-listing is possible but rare in practice and is likely to take a minimum of 5 months.

Question 32

When would you need to apply for listed building consent?

Answer 32

A listed building may not be demolished, extended, or altered without special permission from the local planning authority.

Question 33

How long does it take to gain listed building consent?

Answer 33

From validation of application most authorities aim to have decision within 8 weeks although they can take as long as 12 weeks.

Question 34

What Enforcement Action Can be Taken if a listed building is falling into disrepair?

Answer 34

Section 215 (s215) of the Town & Country Planning Act 1990 (the Act) provides a local planning authority (LPA) with the power, in certain circumstances, to take steps requiring land to be cleaned up when its condition adversely affects the amenity of the area.
for

Urgent Works Notices - An urgent works notice may be served where works are urgently necessary the preservation of a listed building. Mainly to do with maintaining structural integrity and weather tightness. This allows for works to be undertaken by the LPA and the cost recovered from the owner.

Repairs Notices - A Repairs Notice can lead to compulsory purchase of a property by the planning authority if repairs are not carried out. Works undertaken under a repairs notice are long-term repairs to put and keep a building in good repair.

Compulsory Purchase Orders - Many local authorities were reluctant to use their repairs powers. They were afraid that the owners might respond, as they are entitled to do, by serving a purchase order on the council. The council would thereby be obliged to purchase the building and repair it at the taxpayers
expense.

Question 35

What Enforcement Action can be taken when a Listed Building Consent has been breached?

Answer 35

An enforcement notice requiring the breach to be remedied can be issued.
A stop work notice can also be issued.

Question 36

Is there a time bar on enforcement as is the case with planning?

Answer 36

There is no time limit for listed building consent.

Question 37

What is the time bar on planning enforcement?

Answer 37

There are two time limits, laid down in section 171B of the Town and Country Planning Act 1990.

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.

Ten years is the time allowed for all other breaches of planning control.

Question 38

Is there any dispensation for VAT on works to a listed building?

Answer 38

Alterations to listed buildings that are designed as dwellings or used for qualifying residential or non- business charity purposes, together with those that are being converted to such use, are not subject to VAT as long as the work is done by a VAT registered builder and with listed building consent.

Question 39

Please explain your understanding of the term Dilapidations?

Answer 39

Dilapidations refer to breaches of lease obligations either implied or expressed.

• Typically they relate to reinstatement, repair, redecoration and the subsequent costs associated with carrying out these works.

A schedule of dilapidations is normally produced to identify any breaches of the lease.
The legal remedy is typically a claim for damages if not rectified prior to lease expiry.

Question 40

Are you aware of any RICS Guidance on Dilapidations?

Answer 40

The RICS has produced the guidance note Dilapidations in England and Wales 7th Edition (2016) This aims to provide best practice guidance on:-
○ Producing schedules of dilapidations - A document identifying breaches made under a lease or tenancy. This normally sets 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.

о
Scott Schedules - A schedule of dilapidations with additional information provided on each of the parties views on the alleged breaches and subsequent remedial works that are required.

Diminution Valuations - A valuation carried out in order to determine the reduction in value of a landlords property as a result of a tenants alleged breach of the lease terms.

Question 41

What are the potential roles of a surveyor in relation to dilapidations?

Answer 41

Surveyors can act as advisors, expert witnesses or dispute resolvers.

They may be required to identify and comment on alleged breaches of the lease and have a duty to act objectively without over exaggerating or under estimating potential claims.

As a result of their duties they may also be required to give evidence before a court or tribunal.

Surveyors are bound by the RICS Practice Statement Surveyors Acting as an Expert Witness’ where their duty to Clients is overridden by a primary duty to the courts.

Question 42

What are the 5 Stages of Dilapidations?

Answer 42

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:-
о
The Cost of the Repair Works.
O
The loss of value to the property.
Loss of rent and services charges.
O
Rates.
O
Insurance.
o Security.
O
Utilities.
о o Cleaning.
o
Finance Costs.
Professional Fees incurred.
Stage 5: The response and negotiation (Under pre-action protocol, surveyors should meet within 26 days).

Question 43

What is the difference between a Terminal Schedule of Dilapidations and an Interim Schedule of Dilapidations?

Answer 43

Terminal Schedule of Dilapidations is a term given to a schedule of dilapidations that is prepared in anticipation of the lease ending and is either issued on expiry of the lease term or shortly afterwards. This also includes reference to yield up obligations the tenant has when vacating the property and any repairs that are required upon leaving.

An Interim Schedule of Dilapidations is a schedule that is prepared in contemplation of the remedy of any alleged breaches that are thought to have taken place prior to the lease expiry and this does not contain any reference to yield up obligations that result from the tenant leaving the property.

Question 44

What are break clauses?

Answer 44

They permit tenants and landlords to terminate leases on an intermediate date during the lease term.
Some clauses are conditional which require compliance before a break is deemed effective, for example:-
O Vacant possession is provided by the tenant.
Issue of Notice.
o Compliance with certain lease obligations.

Question 45

What is the Pre-Action Protocol?

Answer 45

This protocol sets out the particular conduct a court would expect from both parties prior to escalation to court proceedings in relation to commercial property claims.
It establishes a reasonable process and timetable for the exchange of information relevant to a dispute and sets standards for the content and quality of schedules and quantified demands in particular the conduct of pre-action negotiations.

Question 46

What are Part 36 Offers?

Answer 46

A part 36 offer is a written offer to settle a dispute, 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 47

What are Calderbank Offers?

Answer 47

A Calderbank offer is a type of settlement offer, it 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 48

What is the Landlord and Tenant Act 1985?

Answer 48

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.
To keep in repair and proper working order the installations in the dwelling for the supply of water, gas and electricity.
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.
Ensuring the property is looked after and general maintenance is carried out such as changing fuses, light bulbs and unblocking sinks if required.

Question 49

What is the Law of Property Act 1925?

Answer 49

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 50

Defective Premises Act 1972

Answer 50

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 51

What are The Civil Procedure Rules 1998?
*

Answer 51

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:-
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 52

What is the Party Wall Act 1996?

Answer 52

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 53

What is a Party Wall?

Answer 53

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 54

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

Answer 54

If the excavation is within 6m of the adjoining owner’s property and deeper than the property in question, this also falls within Section 6.
Also note that if the planned excavation falls within a plain drawn downwards at a 45 degree angle from the bottom level of the neighboring foundation a notice must be given at least one month before the works are due to commence.

Question 55

When is serving a notice not required?

Answer 55

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

Question 56

What items are included within a Party Wall Notice?

Answer 56

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 57

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

Answer 57

When a notice is served the adjoining owner can:-
O Provide written consent within 14 days from the date of the notice.
о Provide written consent with conditions (which may be refused) in writing within 14 days.
O Refuse consent which will commence a dispute resolution process.
о 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 58

What is a CDM

Answer 58

Construction Design and Management Regulations 2015
Whatever your role in construction, CDM aims to improve health and safety in the industry by helping you to:

sensibly plan the work so the risks involved are managed from start to finish
have the right people for the right job at the right time
cooperate and coordinate your work with others
have the right information about the risks and how they are being managed
communicate this information effectively to those who need to know
consult and engage with workers about the risks and how they are being managed

Question 59

What is the CDM duty holders

Answer 59

Clients
Principal Designer
Principal Contractor
Designers
Contractors

Question 60

What is a fixture?

Answer 60

a. something that’s fixed to the building itself, that’s integral and part of the building as opposed to loose furniture, which could be like a desk. But if you was in a science block and you had all those fixed science benches, then that would be your fixed furniture. So that would be part of your lease

Question 61

what is a chattel?

Answer 61

a. The word ‘chattel’ is a legal term meaning an item of tangible, movable property – something you can both touch and move. Your personal possessions will normally be chattels. Including: items of household furniture, paintings, antiques,

Question 62

Case law that related to fixtures and chattels?

Answer 62

Holland v Hodgson (1872) LR 7 CP 328
FACTS
* The claimant received a mill via mortgage from the former owner.
* The owner transferred all their property to a trustee (the defendant) at the same time.
* The trustee seized some of the looms within the mill, these looms were attached to the property via drilled in plugs which were used expressly for the purpose of fixing the looms to the land.
* The machines themselves could be easily removed, but not the plugs.
ISSUE
* Did the machines constitute a fixture or chattel when attached to the property?
* Were the machines part of the mortgage transfer?
Holland v Hodgson DECISION
* The machines had become part of the land and were therefore necessary to be included in the transfer.

Question 63

Whats the purpose of damage?

Answer 63

a. Generally, the purpose of an award of damages for breach of contract is to compensate the injured party. The general rule is that damages are meant to place the claimant in the same position as if the contract had been performed. Damages are usually awarded for expectation loss (loss of a bargain) or reliance loss (wasted expenditure).

Question 64

What is limits recovery and when does it apply?

Answer 64

The Limitation Act 1980 sets out the rules on how long a creditor (who you owe money to) has to take certain action against you to recover a debt. The time limits do not apply to all types of recovery action. Also, the time limits are different depending on the type of debt that you have.

Question 65

When can I use the Limitation Act?

Answer 65

This depends upon the type of debt you have.

Question 66

When does the limitation period start running?

Answer 66

Whatever the limitation period is, for example six or twelve years, it is important to understand exactly when the time limit started. Under the Limitation Act, time starts to run from the “cause of action”. This is not the same for all types of debt, so be careful. ie. from the earliest time that the legal proceedings could first have been brought.

Question 67

What is a section 146 notice

Answer 67

A section 146 notice is a notice issued by a landlord to a tenant who is in breach of a covenant of the lease12345. The notice warns the tenant of the landlord’s intention to forfeit the lease and terminate it early123. The notice must specify the breach complained of and require the tenant to remedy it if possible, and to compensate the landlord145. The notice is served under section 146 of the Law of Property Act 19251345.

Question 68

What is a forfeiture

Answer 68

The forfeiture clause allows for the early termination of a lease by the landlord if the tenant breaches the covenant to pay rent. For residential premises, the landlord needs to obtain an order from the court before he can terminate the lease.

Forfeiture clauses help ensure the proper incentive of tenants in complying with the conditions. Moreover, not just the tenants are affected by the forfeiture of the lease.

Question 69

whats the process of a forfeiture

Answer 69

Forfeiture proceedings can be either criminal or civil and fall under a number of categories, as per the Proceeds of Crime Act 2002. Within the Proceeds of Crime Act 2002, section 297A states that criminal financial assets can be seized outside of the court, whereas a court order is needed to forfeit assets following section 298.

The process of forfeiture often involves proceedings in the court of law. Civil proceedings occur when the action is against property, as opposed to a person. Whereas, criminal proceedings occur when the action is against a person. If the defendant is found guilty during criminal proceedings, criminal forfeiture allows for their property, money or substitute assets to be confiscated.

The advantage of issuing forfeiture proceedings is that it avoids the difficult nature of re-taking possession of the property. On the other hand, the main disadvantages are that the process can be significantly lengthy and result in additional legal fees.

Question 70

Jarvis vs Harris case

Answer 70

The term Jervis v Harris clause, stems from a prominent dilapidations court case in 1995. As a consequence of the court’s decision, most modern day leases contain a ‘self-help’ remedy for Landlords, when a Tenant is failing to maintain and repair a property in accordance with their contractual obligations under a Lease during the lease term. Such ‘self-help’ remedies are often referred to as a Jervis v Harris clause.

Question 71

What rights does this jarvis vs harris remedy grant to a Landlord?

Answer 71

A Lease which contains a properly drafted Jervis v Harris clause, grants the Landlord a right to first serve notice on a Tenant, specifying any breaches of covenants relating to the condition of a property.

If the Tenant then fails to proceed diligently with remedying the breaches and/or to remedy the breaches identified in the notice within a specified period, (as set out in the Jervis v Harris clause – usually within 2-3 months), the clause grants a right for the Landlord to enter the property to carry out the works and to then recover the costs in doing so from the tenant, as a ‘debt’.

Question 72

What are the advantages of jarvis vs harris clause?

Answer 72

it is likely to result in the necessary works being carried out. Especially if the Tenant is properly informed and seeks professional advice, meaning the property does not fall into further dis-repair during the remainder of the term and which can result in more costly and difficult repairs being needed in the future.

the Landlord is able to recover their reasonable costs incurred in undertaking the works from the Tenant as a ‘debt’, rather than as a damages claim. Consequently, the costs incurred are not subject to Section 18 (1) of Landlord and Tenant Act 1927, which limits any damages claim due to a Tenants failure to maintain and repair a property in accordance with their contractual obligations, to the adverse effect on the properties freehold value.

Therefore, all a Landlord will need to prove is they have acted reasonably, undertaken the works, incurred costs in doing so and are entitled to recover the costs in doing so as a ‘debt’ rather ‘damages’. Meaning they are then entitled to recover the actual costs incurred as a simple debt due by the tenant, which is far more straightforward to pursue compared to a damages claim.