Some experienced commercial landlords may be familiar with the Dilapidations Protocol, it has been around for a number of years and those involved in dilapidations whether they be landlords, surveyors or solicitors have followed the protocol as a guide. However the Dilapidations Protocol is now for the first time part of the CPR and it will no longer be good enough simply to pay lip service to it.
For landlords this means that the schedule of dilapidations must be served within a reasonable time (56 days), it must be endorsed by the landlord or his surveyor stating that the works are reasonably required, the costings are realistic and what the landlord’s intentions for the property are. The tactical advantage that some landlords may have originally taken on serving a blind schedule without any detail of the landlord’s intentions and commencing negotiations on that basis may now be lost.
There are further underlying implications which landlords should be aware of. The landlord’s intentions for the property may be recorded in its documents somewhere, whether it be in board minutes, instructions to planning consultants or builders, or an application for planning consent. Those documents will be documents subject to disclosure in any dilapidations case which becomes contested, this is not new. However landlords should be aware that the documents should be voluntarily be disclosed now to the tenant during the pre-action stages and failure to do so may lead to the landlord facing an application for disclosure of those documents or face costs sanctions by the Court.
Landlords who are unsure what their intentions are for the property should be mindful of the implications of creating documents relating to various plans. Those documents created are likely to be disclosed in the proceedings and could impact upon the landlord’s case. This will particularly be the case for the landlord who investigates and records various plans to redevelop, even if those plans are later abandoned.
It is now more important than ever for landlords and indeed tenants to seek legal advice in the early stages of any dilapidation dispute to ensure that they are fully prepared for what lies ahead.
By residential landlords solicitor, Louise Hebborn