Phils Legal Flashcards
What is meant by the term dilapidations?
Breach of lease obligations usually in relation to the reinstatement, repair, decoration and statutory costs
Usually identified in a schedule of dilapidations.
What is Vacant Possession?
Tenant does not interfere with the landlord’s ability to assume immediate and exclusive possession and control
Usually includes giving up occupation, removing all possessions, and returning keys to the landlord.
What roles can a surveyor have within dilapidations?
- Advisor
- Expert Witness
- Determinator
When can fees be claimed?
If there is an express provision in the lease or pursuant to statutory provisions (section 146 of the Law of Property Act 1925).
Describe a Scott schedule.
A schedule with the following column headings:
* Item
* Clause
* Breach
* Remedy
* Landlord’s Cost
* Tenants Comments
* Tenants Costs
What remedies can be sought from claims during the term of a lease?
- Damages
- Forfeiture
- Entry to carry out the repair followed by a claim for costs
- Specific performance
How is the assessment of loss calculated?
Usually by the cost of works
If the landlord does not intend to do the works, the dilapidations cost may not be a true reflection of the loss.
How can you go about limiting a dilapidations claim?
- Review the lease covenants to assess the tenant’s liability
- Assess the costs for exaggerated items
- Determine any possibility for using s18 arguments
Describe the two limbs of section 18 of the Landlord and Tenant Act 1927.
- Diminution: Damages for the breach of the repairing covenant are limited to the amount by which the value of the premises is diminished due to the breach.
- Supersession: Any works deemed to be valueless due to the landlord’s intentions.
When does the Leasehold Property (Repairs) Act 1938 apply?
A landlord’s claim for damages during the term if the lease is granted for 7 or more years, and there are 3 or more years remaining.
What type of clause is often exercised during interim schedules?
Jervis v Harris clause
A right for the landlord to enter the property without consent of the tenant to undertake works the tenant should have carried out.
Name the 5 circumstances that would allow a landlord the right to enter the property under the Leasehold Property (Repairs) Act 1938.
- Immediate remedy of the breach will prevent diminution in value of the reversion
- Immediate remedy is required in the interests of other occupants in a multi-let building
- The breach can be immediately remedied for a relatively small amount compared with that if the repairs are delayed
- Remedying the breach is required to comply with bye-laws
- Special circumstances at the discretion of the court.
What is a break clause?
A break clause allows a tenant to terminate their lease early, usually subject to certain conditions.
What are the aims of the Dilapidations Protocol?
- Avoid litigation
- Encourage early and full exchange of information
- Discourage inflated claims
Do surveyors have to follow the Protocol?
No, the Protocol is guidance; however, courts treat it as the normal and reasonable approach.
What is the response time of the tenant to the Landlord’s Quantified Demand?
Within 56 Days
What is an endorsement?
Confirmation that all works set out in the schedule are reasonably required for compliance with lease obligations.
What are consequential losses?
- Professional fees in connection with preparation of the schedule of dilapidations
- Legal fees in connection with the service of the schedule of dilapidations
- Administration of the work envisaged by the schedule of dilapidations
- VAT
What is a quantified demand?
A full statement of what the landlord says it is owed.
Are dilapidation claims subject to VAT?
Customs and Excise rules state that a full and final settlement on dilapidations liabilities is not a taxable supply for VAT.
What is a Part 36 Offer?
A defendant makes a Part 36 offer, and the claimant has 21 days to consider it.
What does ‘Without Prejudice’ mean?
Negotiations can be entered into openly and potentially without the fear of anything said during the negotiations.
What is the difference between express and implied obligations?
- Express terms: Specifically agreed within the contract.
- Implied terms: Not mentioned within the contract but apply by statute or the courts.
What is a party wall as defined by the Act?
A wall on the land of two owners by more than just the footings.
What are the rights of the Party Wall etc. Act 1996?
- To treat the whole party wall as if it were their own
- To enter and remain on adjoining owners property to undertake works as reasonably necessary
- Serve notice on adjoining owners before undertaking works
What work does the Party Wall etc. Act cover?
- Construction of new walls astride boundaries between adjoining owners land
- Repairs and modifications to existing party walls
- Excavation near to neighbouring buildings
How does the Building Owner notify the Adjoining Owner?
By a notice containing the building owner’s name, address, address of the building to be worked on, full description of the proposed works, and a clear statement that it is a notice under the Act.
What happens after serving the Notice?
- The adjoining owner may give consent in writing
- Dissent to the proposed works in writing
- Do nothing
What happens if the adjoining owner does nothing?
After 14 days, a dispute has arisen.
What is in an Award?
- Describes the works
- Confirms when and how the work is to be carried out
- Specifies any additional works required
Can the award be contested?
The award is final unless properly challenged in the courts within 14 days of publication.
What are special foundations?
Foundations in which an assembly of beams or rods are employed for the purpose of disturbing loads.
Who normally pays for the work and the Adjoining Owners Surveyor?
Usually the building owner who initiated the work.
Can you prune trees extending from a neighbour’s property?
Yes, however, it is against the law to wilfully damage a tree protected by a Tree Preservation Order (TPO).
How can a right to light be acquired?
By uninterrupted use of something over someone else’s land for 20 years without consent, openly, and without interruption.
What remedies may a court award for a rights to light case?
- Award compensation
- Cut back the offending part of the development
- A combination of both
What is ADR?
Alternative Dispute Resolution.
Explain the process of Mediation.
A neutral mediator facilitates negotiation between the two parties. It’s a confidential and informal process.
Explain the process of Adjudication.
The adjudicator acts to determine the dispute and must reach a decision within 28 days.
Explain the process of Arbitration.
The Arbitrator takes on an almost judicial role. The parties are bound by the decision.
