Remedies

If it appears that a tenant or landlord has failed to meet its obligations under the lease as to the form and condition of the property, the landlord or tenant should first consider what, if anything, it might do as a result of the breach. If it chooses to take action to enforce the terms of the lease, it will need to consider how it might do so. The remedy sought can have an impact on the way in which a dilapidations claim is pursued. Therefore, it is appropriate to consider, at this stage, the remedies available to a landlord or tenant when faced with a breach of covenant by the other.

Although some of the practical steps necessary to progress a dilapidations ‘claim’ are considered elsewhere (for example, Inspection of the property or Preparing the schedule), since the remedies that might be pursued are to be considered here, it is convenient to also consider how a claim might be initiated and by whom. The manner in which the schedule is served will be dictated by the objective the landlord wants to achieve. This also involves a consideration of the remedies open to the landlord.

Of course, it would be unusual for any professional to guarantee that a particular outcome will be achieved, and the possibility that it might not is a factor that the retained surveyor or solicitor will also advise on.

Most dilapidations claims against the tenant arise at the end of the term of the lease. In such cases, there is only one remedy available to a landlord – damages. But breaches of covenant can occur at any time during the lease term and in those cases, there are a number of remedies available. The choice of remedy may be driven by a number of factors.

For instance, the landlord may be keen to get the work carried out quickly, in which case pursuing a claim for damages would not be the preferred option. It may want the tenant to carry out the work identified as being necessary, or recover possession of the building, or indicate that, unless the tenant does the work specified, the landlord will carry it out at the tenant’s cost. It may be that the landlord would like the tenant to leave the property – for example, perhaps if the building is under-rented. Generally the landlord will know what it  wants at the time of the surveyor’s instruction and the surveyor must fully understand exactly what it is that the landlord wants to achieve. It is essential, therefore, that the surveyor has a good knowledge of all the principal remedies available in both interim and terminal situations for both landlords and tenants. Surveyors should remember that perhaps pursuing a claim using a combination of remedies might be in their client’s best interests.