Dilapidations documentation

When a building has suffered damage or has failed in a particular way, the landlord (and/or their advisers) will need to gather all the relevant documents in order to consider the rights and obligations of each party.

The starting point in considering these obligations is to review and understand all the documentation and information relating to the occupation and maintenance of the building in question. A deficiency of information can lead to inappropriate steps being taken.

The principal document to be reviewed is the lease (or leases, including any subleases) (or the terms of the tenancy, as some terms may be implied, as opposed to recorded in the lease). Other necessary documentation can include:

• any licences or other consents for alterations, with plans and specifications;
• any reinstatement notices;
  
• any other licences or deeds that address the state and condition of the building and the obligations to maintain it (these might include licences to assign and deeds of surrender);
• side letters or other written agreements including deeds of variation;
• any agreement for lease, if intended to survive the grant of the lease;
• any schedules of condition or building surveys (which may or may not be attached to the lease) or building surveys, together with appropriate photographs;
• schedules of fixtures and fittings or inventories;
• any notices under the Landlord and Tenant Act 1954;
• any photographs showing the building in a fully maintained state;
• any plans or drawings of the building;
• current or historic planning consents;
  
• statutory notices;
  
• original or current letting or investment sale details;
  
• evidence of rental values and yields; and
  
• statement of the landlord’s intentions.

For further information on the documentation to be referred to, see section 4, 'Documentation', in the RICS Dilapidations guidance note (7th edition).

An understanding of these documents should enable the landlord to identify the rights and obligations of each party and to determine whether the particular damage concerned can or should be the subject of a claim or some practical action.

Although an appropriately qualified surveyor should be able to review and understand such documentation, sometimes there are ambiguities or missing elements, resulting in a need to seek legal advice.

As a result of the introduction of the Land Registration Act 2002, many more leases are registered. Consideration should therefore be given to identifying the ‘legal’ tenant (that is, the ‘owner’ of the leasehold interest). There may have been assignments that could result in a need to register a previously unregistered lease at the Land Registry. Failure to do so could mean that the assignor (or former tenant), being the registered proprietor of the leasehold interest, will technically remain the legal tenant, even though the parties may believe that someone else has become the tenant. If so, notices and the like will have to be served on the assignor. Care should be taken to ensure that notices or other formal documents are served on the correct person or body by the correct person or body (so the landlord’s interest should be checked too). Consequently, some investigation at the Land Registry may also be required.