Pre-action protocol
Landlords should follow this when making a terminal dilapidations claim; this allows the parties to lay their cards on the table and increases the chances of claims being settled amicably. If disputes eventually go to court, compliance with the Protocol ensures the efficient management of any proceedings, whereas non-compliance can have adverse costs consequences for the defaulting party in any dispute.
The critical steps:
- A terminal schedule of dilapidations is sent to a tenant within 56 days from termination of the lease term.
- The tenant’s surveyor then has 56 days to respond.
- Surveyors for both parties meet within 28 days of the response to discuss the items claimed and the response to these.
What a tenant should consider
- Whether alleged breaches are breaches of covenant.
- If a breach of covenant, whether the work done can be done more cheaply.
- Whether an item raised by the landlord is intended to improve the condition of the premises, rather than remedying a disrepair.
Note that:
- Under the Landlord and Tenant Act a cap can be placed on what the landlord can recover.
- Dilapidations cannot be recovered if the landlord has plans to demolish or substantially alter the site.
Timing and tactics
Sometimes it is in the tenant’s interest to allow dilapidation negotiations to run for some time, as this will reveal a landlord’s true intentions for the property, so the right strategic moves can be made in defending the claim
Beware
Dilapidations claims are extremely technical and strategic in nature, but our team has extensive experience of both managing and supporting building surveyors and tenants to help them through the maze.
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