Dilapidations

Question 1

What happens if a lease is silent on specific obligations?

Answer 1

Common law would apply.

Question 2

What is the obligation of a landlord in common law?

Answer 2

Give access on the date of possession.
Not do anything to permit access during the lease.
Ensure the lease premise is fit for purpose.
Keep the premise wind and watertight during tenancy.W

Question 3

What is the obligation of a tenant in common law?

Answer 3

Enter at date of possession.
Use the site for the intended use only.
Take reasonable care.
Pay rent on time.

Question 4

What are the two common types of leases in Scotland?

Answer 4

A full repair and insurance.
Internal repair only.

Question 5

What are the essential parts of a lease?

Answer 5

The name of both parties.
Identification of the premises.
The rent.
The expiry date of the lease.

Question 6

What are the principles of dilapidations?

Answer 6

The definitions
Dilapidation = the breach of a non-monetary obligation under the terms of a lease.
Wants of repair = the remedial action reasonably required to correct a non-monetary breach.

The ingredients
A lease or contract must exist between the parties. The premises where the dilaps refer to must be included in the description. There must be an identifiable breach of obligation which results in a want of repair.

Purpose
During - remind a tenant of their obligations, to specifically require that repair or maintenance works are carried out (cyclical maintenance obligations are being met).
To define the work that should be carried out before the lease termination.
To define the breaches to substantiate the wants of repair and to quantify and pursue a claim for damages.

Question 7

What has been your role when carrying out Schedule of Dilapidations?

Answer 7

I have carried out the role of an advisor to identify and comment on breaches, appropriate remedies and prepare schedule of dilapidations.

Question 8

What documents would you refer to before a Schedule of Dilapidation inspection?

Answer 8

Additional documents to review before survey may include any amendments / variations / extensions to the lease, schedule of condition, schedule of landlord fixtures and fittings, planning or other notices, plans / drawings of the premises.

Question 9

Talk us through how you carried out a Schedule of Dilapidation to the retail premises?

Answer 9

As per RICS guidance for inspections.
Obtain asbestos records. Gas safety certs, electrical safety tests, building services info.
Review relevant documents.
Detailed notes and sketches.
Start notes with general info - date, surveyor, weather, orientation, general description, occupation.
I break down breaches of the repairing obligation by each element. Then the decoration works required and any statutory compliance issues.
Measurements to quantify wants of repair.
Photographs.

Question 10

How do you layout a Schedule of Dilapidation?

Answer 10

Unique itemised number.
Relevant clause. The breach may apply to more than one clause, all relevant clauses should be referenced.
The breach alleged.
The remedy required.
The cost of the remedy (when relevant).

Question 11

What is a Scott’s Schedule?

Answer 11

A Scott’s Schedule can be developed to facilitate the exchange of comments during dilapidation negotiations. These allow the respective surveyors to comment against each item.

Question 12

What were some of the breaches at the commercial premises where you carried out a schedule of dilapidations for?

Answer 12

Removing of alterations and stripping out fittings back to the shell. Making good wall coverings.

Question 13

What remedies are open to a landlord for dilapidations?

Answer 13

Decree of specific implement: (A court order) can be sought for enforcement of a tenant’s non-monetary obligation.
Instigate repair works: Jervis vs Harris clause.
Terminate lease: Invoke irritancy clause.
Claim for damages: At the end of the lease if the tenant has failed to comply with their obligations the landlord can claim for damages which are a measure of the loss suffered.

Question 14

What remedies are open to a tenant for dilapidations?

Answer 14

Carry out those works they consider appropriate.
Carry out all works.
Offer a monetary settlement in lieu of carrying out works.
Do nothing if the likelihood is that the landlords claim will fail by virtue of the schedule prepared or prevailing circumstances.