Legal/Regulatory Compliance Flashcards by Marcus Milnes

What are the Building Regulations?

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

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What is deemed to constitute Building work under the Building Act 1984?

Building Work is defined in Regulation 3 of the Building Regulations.

The definition means that the following types of project amount to ‘Building Work’:-

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

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What are the Approved Documents?

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.

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Can you please name some of the Approved Documents?

A — Structure.
B — Fire Safety.
C — Site preparation and resistance to contaminates and moisture.
D — Toxic Substances.
E — Resistance to the passage of sound.
F — Ventilation.
G — Sanitation, hot water safety and water efficiency.
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.
O — Overheating.
P — Electrical safety.
Q – Security in dwellings
R – Infrastructure for electronic communications
S – Infrastructure for charging electric vehicles
Materials and workmanship – Approved Document 7

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Can you please outline the changes made to Approved Document L in 2022?

New carbon emission target.
Lowering of U-values for new and replaced elements.

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Can you tell me the different types of asbestos survey?

Management Survey
Refurbishment & Demolition Survey

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When would you undertake the different types of asbestos survey?

Management Survey – Allows the duty holder to produce an asbestos register and an asbestos management plan (Reg 4 – duty to manage asbestos)
Refurbishment & Demolition Survey – To be carried out prior to undertaking works that may disturb ACM’s (Reg 5 – identification of presence of asbestos).

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If you were doing a survey, would you give advice as to what materials contain asbestos?

No - It isn’t possible to confirm if materials contain asbestos without testing.

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What accreditations should you have to undertake asbestos surveys?

UKAS (United Kingdom Accreditation Service).
P402 qualification (for taking samples).

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When were the different types of asbestos banned in the UK?

1985 – Amosite (brown) and Crocidolite (blue).
1999 – Chrysotile (white).

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Do you know when the Building Act came into force?

1984

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At 76 Clifton York where the client had an enforcement action regarding planning, what would happen if they did not obtain the retrospective planning permission?

Requirement to reverse changes made.

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What are the timeframes regarding planning enforcement notices?

As of April 25, 2024, the time limit for taking enforcement action for planning breaches in England is 10 years. This applies to all breaches of planning control, including: Operational development, Changes of use to dwellinghouses, and Breaches of planning conditions.

The 10-year time limit applies to breaches committed on or after April 25, 2024. For breaches that occurred before this date, a four-year time limit applies if:

The breach involved building or other operations without planning permission, and substantial completion occurred before April 25, 2024

The breach involved changing the use of a building to a single dwellinghouse, and the change occurred before April 25, 2024

If an enforcement notice is served, there is a period of 4 to 6 weeks before it takes effect. During this time, the recipient can appeal to the Secretary of State. The appeal process can take 4 to 12 months. If no appeal is submitted, or if the appeal is dismissed, the recipient must comply with the requirements of the notice.

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Do you know of any RICS guidance on dilapidations?

Dilapidations England and Wales (7th Edition, September 2016 – Professional Standard).
Consumer Guide - Dilapidations in England and Wales A clear, impartial guide.

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Can you provide examples of documentation relevant to dilapidations claims?

Lease(s)
Scaled plans
Licences or other consents for alterations, with plans and specifications
Inventories
Reinstatement notices
Notices under the Landlord and Tenant Act 1954
Schedule of condition (with photographs)
Current or historic planning consents
Statement of the landlord’s intentions

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What should be taken into consideration when assessing the standard of repair/condition and value of a property?

The nature of the location when the lease was granted (if possible), as this information might be relevant to the assessment of the standard of repair and/or condition and
The general standard of repair of properties in the locality and whether they are, for example, vacant, boarded up or refurbished, as this information might be relevant to the diminution in the value of the landlord’s reversion.

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What is typically contained within a Schedule of Dilapidations?

Details of documents relied upon
An itemised numbered reference
The relevant clause of the lease or other document
The alleged breach
The remedy required (when relevant) and
The cost of the remedy (when relevant).

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What information might you rely upon when quantifying the costs within a dilapidations claim?

Invoices following completion of the remedial works
The results of a competitive tender exercise
Price book data
Relevant and recent tender price information
The advice of a quantity surveyor and
The result of a consultation with and assistance from a contractor, which could be conducted on the basis of a full specification of works derived from the Schedule of Dilapidations

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Who would serve a Schedule of Dilapidations?

The landlord’s solicitor if formal service is required.
Where formal service is not required, it can be acceptable for the landlord’s surveyor to issue the SoD on the landlord’s behalf.

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What legislation related to interim dilapidations?

The Leasehold Property (Repairs) Act 1938 (the 1938 Act) sets out a number of important limitations on landlords’ remedies in this context. It applies to any lease that was granted for a term of seven years or more and three or more years of the term remain unexpired. It does not, however, apply to all remedies (only to forfeiture and damages).

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What are the remedies available to landlords when pursuing an interim dilapidations claim?

Damages
Forfeiture
Specific performance and
Entry to carry out the work.

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What must a landlord do when looking take forfeiture proceedings?

Serve a 146 Notice upon the tenant, detailing the breaches, and must give a reasonable time for those breaches to be remedied.
If the tenant does not remedy the breach(es) within a reasonable time, the landlord can commence forfeiture proceedings within the county court.
Where the 1938 Act applies, the landlord must so notify the tenant in the section 146 notice and then, if the tenant serves a counter notice within 28 days of service of the notice, the landlord must obtain the permission of the court before commencing proceedings.

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What is specific performance?

The remedy whereby the court orders performance of a contractual obligation – in this context a repairing or similar obligation.
May not be ordered by the court where damages would be an adequate remedy or where performance would be impossible or would cause hardship to the tenant.
Rarely used and considered appropriate in exceptional circumstances such as where the works are urgent or there is no adequate alternative remedy (e.g. the right to enter and do work).

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What is a Jervis v Harris clause?

These relate to the remedy of entry to carry out work by the landlord, without consent of the tenant, after previously serving notice on the tenant to undertake the works within a specified period, which they have failed to do.
The cost of works would be recovered from the tenant as a dept rather than as a damages claim.
If the Jervis v Harris clause states that the landlord’s costs are recoverable as a debt, provisions of the Leasehold Property (Repairs) Act 1938 and section 18(1) of the Landlord and Tenant Act 1927 are anticipated not to apply.
RICS advise extreme caution when exercising these clauses, as failing to adhere to the relevant clauses within a lease can result in counter-claims from a tenant for trespass and breach of quiet enjoyment.

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What is a Scott Schedule?

When the Schedule of Dilapidations is expanded upon to include columns for the tenant’s comments and costs, this then becomes a Scott Schedule.

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When is a terminal schedule of dilaps issued?

Within the last 18 months to 3 years of a lease.
Not more than 56 days after lease expiry.
Served prior to or shortly after lease expiry.

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What are the other types of dilaps schedule you could issue?

Interim (any point during the lease term).
Final (after lease expiry if updates made to terminal schedule).

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When can you issue an interim dilaps?

At any point during the lease term.

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Would you include costs within an interim dilaps schedule?

Only if damages and/or forfeiture are being pursued

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What should consultants have in order to undertake a dilaps instruction?

Relevant experience and PII.

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What is contained in a SoD?

Reference to specific lease clauses
Breaches
Remedial works suggested
Cost of works

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What typical figures may be included within the summary page for a Terminal Schedule of Dilapidations?

Professional fees in connection with preparation of the Schedule of Dilapidations
Legal fees in connection with the service of the Schedule of Dilapidations
Design and administration of the work envisaged by the Schedule of Dilapidations
Costs associated with compliance with the CDM Regulations
Any relevant statutory fees and
An allowance for irrecoverable VAT

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What impact does Section 18(1) of the Landlord and Tenant Act 1927 have on dilaps?

Section 18(1) of the Landlord and Tenant Act 1927 limits the damages that are recoverable for breaches of the repairing covenant. This section is frequently expressed as having two ‘limbs’.
Section 18(1) of the Landlord and Tenant Act 1927 does not apply to breaches of what are termed as ‘non-repair’ type lease obligations, including for example obligations relating to decoration, removal and reinstatement. These are subject to different rules regarding the assessment of damages.

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What are the two limbs to Section 18(1) of the Landlord and Tenant Act 1927?

Limb 1 – Damages in relation to breaches of repair should not exceed the amount by which the value of the reversion in the premises is diminished owing to the breach of such covenant or agreement as aforesaid.
Limb 2 – No damages can be recovered with regard to covenants to leave or put premises in repair at the termination of a lease, if it is shown that the premises, in whatever state of repair they might be, would at or shortly after the termination of the tenancy have been or be pulled down, or such structural alterations made therein as would render valueless.

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Who would formally serve the SoD?

Landlord’s solicitor.

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What remedies are available to the LL as a result of a terminal dilaps?

Damages.

What determines how a terminal SoD should be issued?

Pre-Action Protocol for Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (the ‘Dilapidations Protocol’)

What are the aims of the protocol?

To avoid litigation
To encourage exchange of information between parties
To discourage landlord’s inflated claims

What are the timescales in the protocol?

56 days after lease expiry to serve schedule and quantified demand
56 days for tenant to respond
28 days for surveyors to meet to negotiate a settlement

What are the other keys parts of the protocol?

The SOD
Quantified Demand
The Response
Disclosure of Documents
Negotiations
ADR
Quantification of Loss
Stocktake

Do you know what the endorsement is?

The endorsement should confirm in the landlord or landlord’s surveyor’s opinion:

The works set out are reasonably required to remedy breaches
Full account has been taken of the landlord’s intentions for the property
The costings are reasonable

What should a surveyor do before making the endorsement?

The surveyor should ask the landlord for confirmation in writing of their intentions for the property.

Should the Quantified Demand be endorsed?

No – it is only a requirement for the Schedule of Dilapidations to be endorsed, which is typically appended to the Quantified Demand.

With regard to endorsements on behalf of a tenant, what does the endorsement confirm?

‘the works detailed in the response are all that were reasonably required for the tenant to remedy the alleged breaches of its covenants or obligations;
any costs quoted in the response are reasonably payable for such works; and
account has been taken of what the tenant or tenant’s surveyor reasonably believes to be the landlord’s intentions for the property.’

What are some examples of losses typically included within a Quantified Demand?

Holding costs expected to be incurred before re-letting or sale, as the case may be
Loss of rent until the end of any works and during any additional marketing period required as a consequence
Rates liability
Insurance, security, energy and cleaning costs not already reflected in the Schedule of Dilapidations
Loss due to lack of service charge recoupment
Finance costs (including interest) and
Other fees of the surveyors (including fees relating to assessment of rent and diminution in value).

Are there any other matters a Landlord may need to consider towards the end of a Tenant’s lease?

Timely serving of reinstatement notices.

What is a Part 36 offer?

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.

Does VAT apply to dilapidations claims?

It would depend on whether the landlord is a VAT registered business and able to recover VAT from HMRC – if so then VAT should not apply to a dilapidations claim as no loss of VAT would be suffered.

How would you advise your tenant client regarding break clauses?

Encourage them to seek advice from a solicitor.
Break clauses are likely to be conditional (“conditions precedent”) and they should have the lease carefully checked for any requirements to adhere to in order form them to effectively execute the break.
The lease should be checked to make sure the notice is served correctly and the notice must be served by a solicitor – not a surveyor.
It is not necessary for the landlord to suffer loss for a break notice to be defeated. The tenant cannon use defences such as diminution in value.
The tenant should always plan to undertake any works relevant to a break clause even if there is a strong likelihood that the landlord will accept a financial settlement, as there is no obligation for the landlord to accept.

How would you advise your landlord client regarding the remedy of forfeiture?

They can only apply this remedy if the tenant is in breach of a lease covenant.
Once the forfeiture process has started it cannot be reversed.
The landlord should take advice from a solicitor regarding service of a section 146 notice and. The notice must be served by a solicitor – not a surveyor.
Upon service of a 146 notice, if the tenant does not rectify a breach within a reasonable time, the landlord has the right of forfeiture or re-entry.
Where the Leasehold Property (Repairs) Act 1932 applies (leases granted for a term of 7 years or more, with at least 3 years remaining), the tenant has the right to serve a counter notice within 28 days
If the landlord acts in a way that would imply that the lease is continuing e.g. accepting or demanding rent, the tenancy cannot come to an end. The landlord should stop demanding or collecting rent as soon as they are aware of a breach.

You’ve said you have carried out listed building consent applications, can you explain what you would need listed building consent for?

Demolishing, altering or extending a listed building in a way that affects its character or appearance.

Can you advise what works to a listed building you could do without the need for listed building consent?

Minor maintenance works using like for like materials.

If you are doing a job, and you needed scaffolding on the neighbouring property to do the works, how would you go about getting that in place?

Scaffold license
If access refused, access order granted by court under the Access to Neighbouring Land Act 1992 (“basic preservation works”)

Do you know of any legislation that surrounds this?

Access to Neighbouring Land Act 1992.

If in a party wall job, the other surveyor is not responding/making progress to agree the award, what can you do?

Section 10(7) allows a surveyor to proceed ex parte in the event that the other surveyor neglects to act effectively for a period of 10 days beginning on the day on which either party or the surveyor of the other party serves a request on them.

Can you name any RICS guidance regarding party wall?

Party wall legislation and procedure (7th edition, July 2019) – Professional Standard.

What is the nature and purpose of the Party Wall etc. Act 1996?

The Act governs and facilitates construction works to structures / party structures and works close to boundaries.
The Act authorises work that may involve physical encroachment onto a neighbour’s land, or produce dust, vibration, noise or some other inconvenience or annoyance, but it must be carried out in such a way that it does not cause unnecessary inconvenience.

What is the role of surveyors with regard to the Act?

Their primary role is to balance the interests of the two appointing parties and they should not frustrate the statutory process. They are also required to ensure that the building owner is able to exercise their rights under the Act, but in such a way that only necessary inconvenience is caused to adjoining owners or occupiers. This is achieved by the surveyors defining, in an award, the detail of the work that may be lawfully carried out under the Act and undertaking reasonable inspections of work to which an award relates.

What are the different types of Party Wall?

type a: a wall standing on the land of two owners to a greater extent than simply projecting foundations (Figures 1 and 2) or
type b: the part of a wall standing on the land of one owner that separates the buildings of two owners (Figures 3 and 4).

What is a party structure?

A party structure can be a party wall, a floor or a partition separating different parts of a building, each with separate staircases or entrances (Figure 5).
A party fence wall is a free-standing wall that is not part of a building. The wall and not just the foundation stands astride a boundary (Figure 6).

What is the difference between a boundary wall and an external wall?

A boundary wall is a freestanding wall, not being part of any building, which stands wholly on the land of one owner at, but not astride, a boundary, except to the extent of any projecting footing or foundation (Figure 7).
An external wall is a wall that forms part of a building standing wholly on the land of one owner and which may be situated at, but not astride, a boundary, except to the extent of any projecting footing or foundation (Figure 8).

What are special foundations?

Special foundations are foundations in which an assemblage of beams or rods are employed for distributing any load.

What type of construction operation does the Act regulate?

line of junction works (Section 1)
works to party walls and certain other boundary structures and (Section 2)
adjacent excavation works (Section 6)

Under what circumstances do line of junction works occur?

Where nothing is built on a boundary line (line of junction) or where the only structure built is a free-standing boundary wall that does not straddle the boundary line.

What works would require the service of a line of junction notice?

The construction of:

a party wall
a party fence wall or
a boundary or external wall on the building owner’s own land up to the line of boundary.

Are footings allowed to project onto an Adjoining Owners land?

Only when they are necessary for the construction of a wall and are not special foundations.

Under what circumstances are special foundations allowed to project onto an AO’s land?

When express consent has been provided in writing by the AO.

What should be included within a line of junction notice?

Should be served a minimum of one month prior to the works and should:

Describe the intended wall
State whether the foundations will project on the AO’s land and
Give any details of access requirements

What are the implications of the AO not responding to a line of junction notice?

The wall must be built entirely on the building owner’s land and at their own expense. However, projecting footings may be placed onto the land of the adjoining owner, provided these are necessary for the construction of the wall and are not special foundations.
The works can commence after the 1 month notice period has ended.

What are a Building Owner’s rights under Section 2 of the Act with regard to party walls / structures / party fence walls?

Underpinning
Thickening
Raising
Repairing
Demolishing and rebuilding
Cutting into
Cutting away/cutting off projections
Reducing height of and
Exposing.

What types of excavations fall under Section 6 of the Act?

Under section 6(1), excavations within 3m of a building or structure to a lower level than the bottom of the foundations of such building or structure.
Under section 6(2), excavations within 6m of a building or structure that will cut a line drawn downwards at 45 degrees from the bottom of the existing foundation from a point in line with the outside face of the building or structure.
The best practice recommendation is that all types of piling are notifiable for the purposes of the Act.

When are drawings a mandatory requirement to be included within Notices?

Section 6 Notices.
Advisable for Section 1 Notices when special foundations are proposed.

What are the requirements under the Act for Notices?

be in writing
give the name and address of the building owner – if owned in joint names, all joint owners should be named
be dated – the date on the notice should be the one on which it is delivered in person, posted to the recipient owner or delivered to the adjacent premises
be properly served on all adjoining owners as defined by the Act, whether freehold or leasehold – if an adjoining property is owned in joint names, it has been held that it is only strictly necessary to serve the notice on one of them. However, it is good practice to effect service of a copy of the notice on all joint owners whose identities and addresses are known
be served by the owner or an agent with authority to serve notice(s) on their behalf
state the nature and particulars of the intended works and the date on which it is intended to commence the works – descriptions of intended works should be directed toward a layperson and contain enough detail to enable the extent of works to be understood
where served under section 3 and involving special foundations, be accompanied by drawings showing the special foundation details and reasonable particulars of the loads to be carried and
where served under section 6, be accompanied by plans and sections showing the site and depth of any excavation and the site of any new building. They must also state whether the building owner intends to underpin, or otherwise strengthen, or safeguard the foundations of the adjoining owner’s building. It is good practice to identify the location of the adjoining owner’s building on the drawings.

How must Notices be served?

Either in person or by post to their usual or last know residence or place of business.
Any notice (or other document) may alternatively be served on an owner by addressing it to ‘The Owner’ of the premises (naming the premises) and delivering (not posting) it to a person on the premises. If no person to whom it can be delivered is found there, the notice may be affixed to a conspicuous part of the premises (but not put through the letter box).

Can you serve a party wall Notice electronically?

Only when the AO has stated a willingness to receive notices electronically.

Under what circumstances can an agreed surveyor be used?

When both BO and AO have consented in writing to the use of an agreed surveyor.
An agreed surveyor cannot be used when there is a deemed dispute.

What are the procedures to be followed when a response has not been provided to a Notice within 14 days?

The BO can serve a request on the AO to appoint a surveyor to act on their behalf within 10 days.
If the adjoining owner fails to appoint a surveyor as requested, or refuses to make an appointment, the building owner may appoint a surveyor on behalf of the adjoining owner under the provisions of section 10(4).

What are the procedures to be followed when an AO dissents to a Notice?

Each owner may appoint their own surveyor to act on their behalf, who will agree to the selection of a third surveyor.
Each owner may agree to the selection of one surveyor (the agreed surveyor) who will determine the matters that are in dispute.

What are counter-notices?

Rarely used.
Following receipt of a notice for works under section 2 of the Act, the adjoining owner may serve a counter-notice within one month, setting out such limited additional works as defined in the Act to the party structure or to special foundations as may reasonably be required. It must be accompanied by plans, sections and particulars of that specific work.
The building owner must comply with the request unless to do so would be injurious or cause unnecessary inconvenience or unnecessary delay to the works. The costs of the work will be apportioned according to the benefit to either party.

Under what circumstances can the appointment of a surveyor be rescinded?

Cannot be done by the appointing owner.
The appointment only comes to an end if the surveyor dies or becomes or declares himself or herself incapable of acting.

What happens if the Building Owner(s) changes?

The process starts from the beginning.
Does not apply if the AO changes.
To avoid delay to the statutory proceedings, surveyors can facilitate a change of building owner, with the consent of the adjoining owner, by service of new notice, waiving the notice period and continuing the negotiations with only the building owner’s name being changed. The same situation would apply when an award has been completed and work is taking place – with the already appointed surveyors reproducing the same award, except for naming the new building owner.

What were the obligations of your client at 101 Front Street regarding the Party Wall Act?

To serve Notice to any Adjoining Owners prior to undertaking any works deemed notifiable within the Party Wall Act.
To only undertake works under the Act where they can be carried out without causing any unnecessary disruption.
To follow the statutory procedures set out within the Act, including appointing of surveyors if necessary and adhering to timescales and ensure that the Adjoining Owner’s rights under the Act are upheld.

What were the timescales that you outlined to your client, as applicable to the Party Wall Notice, Award and start date of the works?

Adjoining Owner would have 14 days to respond to the Section 2 Notice once served upon them.
If there is no response to the Notice, as Section 10(4) Notice would be issued, requesting the Adjoining Owner to appoint a surveyor within 10 days, or Building Owner to appoint a surveyor on their behalf.
After issuing of the Award, the Owners would have 14 days in which they could appeal the Award.
Works could start within 2 months of serving of the Notice (unless agreed otherwise with the Adjoining Owner).
The Notice and Award would remain valid for a period of 12 months.

Were there any other Party Wall Notices required for the works at 101 Front Street?

A section 6(1) (adjacent excavations) Notice was issued for the new foundations.

How would you advise your client if there were any damages that occurred to the Adjoining Owner’s property that were due to the notifiable works?

There would be a requirement for them, as the Building Owner, to either make good the damage caused, or award the Adjoining Owner financial compensation.

Why did you recommend to your client that they have a schedule of condition carried out?

To safeguard them against future compensation claims from the Adjoining Owner.
The schedule of condition would provide photographic evidence and written descriptions of the condition of the AO’s property prior to the works being undertaken.

How would you advise your client if they decided against serving a Notice?

Serving of a Notice and having an Award in place protects the BO and entitles them to exercise their statutory rights under the Act without the AO being able to stop the works.
The Adjoining Owners may look to apply to the courts to have an injunction put in place.

What should you make sure of when formalising a dilapidations settlement?

A settlement agreement should:

be in writing (identifying the parties, lease, SoD and QD which the settlement applies to
be open, i.e. not marked ‘without prejudice’
be stated to be in full and final settlement of the claim
deal with each and every part of the claim
the settlement should be dated and signed by each party, or signed for and on behalf of each party by an appointed surveyor, lawyer or agent

The settlement should state the date by which:

if appropriate, any payment pursuant to the agreement is to be paid and/or
if appropriate, works are to be conducted, inspected and signed off

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