Technical - Legal & Regulatory Compliance Flashcards
(150 cards)
1
Q
What is Reliance?
A
- When a party relies on a report/advice to allow them to make a decision that exposes them to financial risk.
- The party holds the right to claim damages if it suffers a loss due to the informed decision.
2
Q
Name the three categories of leases.
A
- Full Repairing and Insurance (FRI)
- Internal Repairing and Insuring
- Internal Repairing
3
Q
What is a Schedule of Condition
A
- A SoC is a record (photographic and descriptive) of the condition of a property at a certain point in time when referenced and attached to a lease.
4
Q
Why would a Schedule of Condition be required?
A
The schedule of condition can be used to protect both landlord’s and tenant’s interests and can be used to accurately understand the repairing, reinstatement and redecoration obligations at the lease end.
5
Q
What is Service Charge?
A
- Charges to the Tenant for costs incurred by a Landlord to maintain and manage the property.
- Budget is agreed before year commences.
6
Q
What is a License for Alterations?
A
- Is a legal document giving permission from the Landlord to the Tenant giving consent to carry out proposed works or alterations to a property.
7
Q
When reviewing a License and giving recommendation on whether to consent, what should you consider.
A
- Lease Wording - Are alterations permitted, do they require consent, is there a superior landlord?
- Existing Building - will there be any detrimental impact of the building structure, operation or services?
- Financial matters - are bonds, warranties, insurance required for the benefit of the landlord?
- Statutory - Is planning or listed building consent required.
- Is planning or listed building consent required.
8
Q
What is a break clause?
A
- Commonly found in commercial leases.
- Permit tenants to terminate their lease on an intermediate date.
- May need to follow conditional requirements detailed within the lease such as service of notice, payment of premium (rent), vacant possession, compliance with other lease obligations.
9
Q
What are the Building Regulations?
A
- The Building Regulations are made under powers provided in the Building Act 1984, and apply in England and Wales
- They exist to ensure the safety of people in and around all types of buildings.
- They also contain provision for energy conservation (L), access to and the use of buildings (M)
10
Q
What is deemed to constitute Building Work under the Building Act 1984?
A
- Building Work is defined in Regulation 3 of the Building Regulations.
- The definition means that following types of project amount to ‘Building Work’
1. The erection of extension of a building.
- The installation of extension of a service of fitting which is controlled under the regulations.
- An alteration project involving work which will temporarily or permanently affect the ongoing compliance of the building, service or fitting with the requirements relating to structure, fire, or access to and use of buildings.
11
Q
What are the approved documents?
A
- The approved documents provided guidance on how the Building Regulations can be satisfied?
- They have legal status under the Building Act 1984
12
Q
What are the approved documents?
A
- The approved documents provided guidance on how the Building Regulations can be satisfied?
- They have legal status under the Building Act 1984 and there are 14 approved documents in total.
13
Q
Can you name some of the approved documents?
A
A - Structural
B - Fire Safety
C - Site preparation and resistance of moisture
D - Toxic substances
E - The resistance to the passage of sound
F - Ventilation
G - Hygiene
H - Drainage and waste disposal
J - Combustion appliances and fuel storage system
K - Protection from falling, collision and impact
L - Conservation of fuel and power
M - Access to and use of buildings
P - Electrical safety
Q - Security
14
Q
How would you get building regulations approved for a project?
A
- Anyone wanting to carry out works which are subject to the Regulations are required by law to make sure it complies with the regulations and to use one of the two Building Control services:
- The Building Control Service provided by your local authority.
- The Building Control Service provided by approved inspectors.
15
Q
Who is responsible for ensuring compliance with the Building Regulations?
A
- The primary responsibility for achieving complaince rests with the person carrying out the works.
- If a client is carrying out the work in their name, the responsibility will be theirs.
- If the client employs a building the responsibility will usually fall to the builder they are appointing however they should confirm this position at the beginning.
- Client’s should also bear in mind that if they are the owner of the building, it is ultimately the Client who may be served with an enforcement notice if the work does not comply with the regulations.
16
Q
What is the difference between Local Authorities and Approved Inspectors?
A
- Local authorities are responsible for ensuring work complies with the Building Regulations.
- Approved Inspectors are approved by the local authority to inspect, supervise and authorize works against the regulations.
17
Q
Why would you opt to use an approved inspector?
A
Because they are generally seen to be more responsive and open to giving advice than local authorities.
18
Q
Are there any timeframes involved with the appointment of an approve inspector?
A
If you appoint an approved inspector they need to serve an initial notice on the council and that has to be validated 5 working days before the project commences.
19
Q
What are the 2 types of Building Regulations Application?
A
- Building Notices: more suitable for minor residential alterations or extensions. No formal plan requirements, as it is reviewed on-site. Work can be commenced 48 hours after issuing the notice. However, the Building Control Officer must be notified when the works are being carried out so they undertake an inspection.
Full Plans Application: This when detailed plans, specifications and structural calculations are submitted to the council. These are checked by the local authority to ensure they meet the regulations. Generally approval is given within 8 weeks although this can vary between different authorities. When the plans are satisfactory a formal approve is provided. In some cases a notice of rejection may be issued if they are not met.
20
Q
What is a plan certificate?
A
This certificate is issued by Building Control and confirms the plans and details provided have been reviewed and confirmed to comply with Building Regulations.
21
Q
What is a final certificate?
A
Following completion of the works, a Final Certificate will be issued by the local authority if the actual works comply with Building Regulations.
22
Q
When are consequential improvements triggered for non-domestic buildings under Part L?
A
- When a building is over 1000m2 and the works involve significant extension or refurb and also when extending or replacing a fixed building service.
- If this is the case then 10% of the value of the works should be spent on improvements.
- The costs must be reasonable with a payback period with 15 years.
23
Q
What are consequential improvements?
A
These defined improvement works were implemented in 2006 within the updated Building Regulations. Designed to conserve fuel and power in existing buildings, there were new requirements that meant the existing buildings would need to be improved when work was to be carried out. This extra work was classed as consequential improvements.
24
Q
What enforcement options are available under building regulations?
A
- If a person carrying out building work contravenes the Building Regulations, the local authority or another person may decide to take them to the magistrates’ court where they could be fined for the contravention.
- This action will usually be taken against the builder or main contractor, although proceedings must be taken within 6 months of the offence (Sec. 127 of the Magistrates Courts Act 1980)
- Alternatively, or in addition, the local authority may serve an enforcement notice on the owner requiring them to alter or remove work which contravenes the regulations (Sec 36 of the Building Act 1984)
- If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs from the owner.
25
What prior approval are required before undertaking demolition works?
- Demolition is dealt with under the Building Act 1984
- Generally, it requires 6 weeks notice to be given to Local Authority before it begins.
- The Local Authority Building Control may decide to issue a notice within 6 weeks on receipt of the notifications to specify conditions, such as protection to adjoining properties and the public.
- Demolition work must also comply with the CDM Regulations and Health & Safety produced by the Principal contractor.
26
Give me some examples where planning permission is required?
- A new build construction on a vacant site.
- A new build extension that is not permitted development.
A change of use that is not permitted change of use.
- The increase in the eight of a fence adjacent to a highway above 1m in height.
27
What information is contained within a planning application?
1. Name of client
2. Name of agent
3. Site address
4. Details of the works
5. Details of the proposed materials.
6. Plans and elevation drawings
7. Access statements
28
What is the timeframe for planning consent?
- 8 weeks from the validation of the application
- Listed building consent can be longer
29
What resource is available in the case that permission is rejected?
- If I felt there were grounds to appeal then I could have prepared an appeal form stating the reasons for the appeal with evidence.
- This can be appealed in the courts within 6 months of the decision.
30
What enforcement action can be taken?
- A planning contravention notice notice can be issued requiring the owner to provide information to the local authority.
- The local authority can enter land and property with 24 hours notice to investigate any suspected breaches.
- Stop notices can also be issued to suspend ongoing works.
31
Is there a limit as to when enforcement actions can be taken?
- Change of use to a single dwelling house is within 4 years from completion of the works.
- Everything else is within 10 years from completion of the works.
32
What is a NPFF?
- The National Planning Policy Framework sets out the Goverment's planning polices for England and how these are expected to be applied.
- The National Planning Policy Frame (NPPF) was published March 2012
- It is designed to make the planning system less complex and more accessible, to protect the environment and to promote sustainable growth.
33
What are the policies behind the NPPF?
- Sustainable development - At the heart of the NPPF is a presumption in favour of sustainable development
- Community decision making: To give decision making power back to the local communities with neighborhood plans and therefore changing to a decentralized decision making process is going to lead to greater variation.
Town Centre renewal: Aims to encourage town centre vitality suggesting that edge of town site should only be used if connect to town centre or if no viable town centre site are available
- Housing: Identify and update annually a supply of deliverable site sufficient for a 5 year supply of housing.
34
What is a listed building?
A listed building is a building that has been placed on the Statutory List of Buildings of Special Architectural or Historic Interest.
35
How is a building listed?
- In England, to have a building considered for listing or de-listing, the process is to submit an application form online to English Heritage.
- The applicant does not need to be the owner of the building to apply for it to be listed.
- English Heritage assesses buildings put forward for listing or de-listing and provides advice to the Secretary of state on the architectural and historic interest.
- The Secretary of State, who may seek additional advice from other, then decides whether or not to list or de-list the building.
36
Under what legislation is a building listed?
In England and Wales the authority for listings is granted to the Secretary of State by the Planning (Listed Buildings and Conservation Areas) Act 1990
37
What classifications of listed building are there?
- There are three types of listed status for buildings in England and Wales.
- Grade I Buildings are of exceptional interest with just 2.5% of listed stock being in this category.
- Grade II* Buildings are particularly important of more than special interest with around 5.8% of listed stock being in this category.
- Grade II Buildings are of special interest warranting every effort to preserve them with around 90% of listed buildings being in this category.
38
Why are Buildings listed?
- The criteria for listing include architectural interest, historic interest and close historical associations with significant people or events.
- The criteria include:
1. Age and rarity
2. Aesthetic merits
3. Selectivity: Most representative
4. National Interest
39
What part of a building is listed?
- Although the decision to list a building may be made on the basis of the architectural or historic interest of one small part of the building, the listing protection applies to the whole building.
- Listing applies not just to the exterior fabric of the building itself, but also to the interior, fixture, fittings, and objects within the curtilage of the building even if they are not fixed.
40
What about the curtilage of a building?
- Any building or structures constructed before 1 July 1948 that fall within the curtilage of a listed building are treated as part of the listed building and therefore approve must be sought before altering.
- The effect of a proposed development on the setting of a listed building is a material consideration in determining a planning application.
- Setting is defined as "the surroundings in which a heritage is experienced".
41
How can a listed building be de-listed
- In the same way as it is listed an application is made to English Heritage and they advise the secretary of state who makes the decision.
- De-listing is possible but rare in practice and is likely to min. 5 months.
42
When would you need to apply for listed building consent?
- A listed building may not be without consent demolished, extended, or altered without special permission from the local planning authority.
43
How long does it take to gain listed building consent?
From validation of application most authorities aim to have decision within 8 weeks although it can take up to 12.
44
What enforcement action can be taken if a listed building is falling into disrepair?
- Section 215 of the Town & Country Planning Act 1990, provides a local planning authority with the power, in certain circumstances, to take steps requiring land to be cleaned up when its condition adversely affects the amenity of the area.
- Urgent Works Notices - An urgent works notice may be served where works are urgently necessary for the preservation of a listed building. Mainly to with maintaining structural integrity and weathertightness. This allows for works to be undertaken by the LPA and the cost recovered from the owner.
- Repair Notices: Can lead to compulsory purchase of a property by the LPA if repairs are not carried out. Works undertaken under a repairs notice are long-term repairs to put and keep in good repair.
- Compulsory Purchase Order: Many LPA were reluctant to use their repair power. Since they were afraid the owners might respond, as they are entitled to do, by serving a purchase order on the council. The council would thereby be obliged to purchase the building and repair it at the taxpayers expense.
45
What enforcement action can be taken when a Listed Building Consent has been breached?
- An enforcement notice requiring the breach to be remedied.
- A stop work notice can also be issued.
46
Is there a time bar on enforcement as is the case with planning?
- There is not time limit for listed building consent.
47
What is the time bar on planning enforcement?
- There are two time limits, laid down in Section 171B of the Town and Country Planning Act 1990.
- Four years is the time allowed for an authority to take enforcement action where the breach comprises either operational development (the carrying out of unauthorised building, engineering, mining or other operations_ or change of use to use as a single dwellinghouse.
- Ten years is the time allowed for all other breaches of planning control.
48
Is there any dispensation for VAT on works to a listed building?
- Alterations to listed buildings that are designed as dwellings or used for qualifying residential or non-business charity purposes, together with those that are being converted to such use, are not subject to VAT as long as the work is done by a VAT registered building and with listed building consent
49
Please explain your understanding of the term Dilapidations?
- Dilapidations refer to breaches of lease obligations either implied or expressed.
- Typically they relate to reinstatement, repair, redecoration and subsequent costs associated with carrying out these works.
- A schedule of dilapidations is normally produced to identify any breaches of the lease.
- The legal remedy is typically a claim for damages if not rectified prior to lease expiry.
50
Are you aware of any RICS Guidance on Dilapidations?
- The RICS has produced the guidance note 'Dilapidations in England and Wales 7th Ed. (2016).
- The note aims to provide best practice guidance on:
1. Producing schedules of condition: A document identifying breaches made under a lease or tenancy. This normally sets out the obligations required under the lease, the breaches thought to have taken place along with any identified cost of remedial works required in order to rectify the breaches.
2. Scotts Schedules: A schedule of dilapidations with additional information provided on each of the parties views on the alleged breaches and subsequent remedial works that are required.
3. Diminution Valuation: A valuation carried out in order to determine the reduction in value of a landlords property as a result of a tenants breach of the lease terms.
51
What are the potential roles of a surveyor in relation to dilapidations?
- Surveyors can act as advisors, expert witnesses or dispute resolvers.
- They may be required to identify and comment on alleged breaches of the lease and have a duty to act objectively without over exaggerating or under exaggerating potential claims.
- As a result of their duties they may also be required to give evidence before a court or tribunal.
- Surveyors are bound by the RICS Practice Statement 'Surveyors Acting as an Expert Witness' where their duty to Clients is overridden by a primary duty to the courts.
52
What are the 5 stages of Dilapidations?
Stage 1: Preparation (Obtain all relevant information)
Stage 2: Inspection (Establish original condition, standard of repair, take into consideration age, character and location)
Stage 3: Preparation of Schedule of dilapidations setting out hte obligations required under the lease, the breaches thought to have taken place along with any identified cost of remedial works required in order to rectify the breaches.
Stage 4: Quantified Demand is a document issued setting out:-
- The Cost of the Repair Works
- The loss of value to the property
- Loss of rent and services charges
- Rates
- Insurance
- Security
- Utilities
- Cleaning
- Finance Costs
- Professional Fees incurred
Stage 5: The response and negotiation (Under pre-action protocol, surveyor should meet within 26 days)
53
What is the difference between a Terminal and Interim Schedule of Dilapidations?
Terminal: A term given to a schedule that is prepare in anticipation of the lease ending and either issued on expiry of the lease term or shortly afterwards. This also includes reference to yield up obligations the tenant has when vacating the property and any repairs that are required upon leaving.
Anticipated (within 18 months of expiry)
Terminal served at expiry or within 56 days
Interim: A schedule that is prepared in contemplation of the remedy of any alleged breaches that are thought to have taken place prior to the lease expiry and this does not contain any reference to yield up obligations that result from the tenant leaving the property.
At least 18 months remaining on the lease/break
54
What are break clauses?
- They permit tenants and landlords to terminate leases on an intermediate date during the lease term.
- Some clauses are conditional which required compliance before a break is deemed effective, for example:-
- Vacant possession is provided by the tenant.
- Issue of notice
- Compliance with certain lease obligations
55
What is the Pre-Action Protocol?
- This sets out the particular conduct a court would expect from both parties prior to escalation to court proceedings in relation to commercial property claims.
- It establishes a reasonable process and timetable for the exchange of information relevant to a dispute and sets standards for the content and quality of schedules an quantified demands in particular the conduct of pre-action negotiations.
56
What are Part 36 offers?
- A part 36 offer is a written offer to settle which must specify a period of not less than 21 days during which it can be accepted.
- If it is not accepted within the time period and the other party does not achieve a higher value than the one contained within the Part 36 offer, there will be cost consequences for the claimant.
57
What are Calderbank offers?
- A Calderbank offer provides greater flexibility that a Part 36 offer because it is not governed by strict court rules.
- This is advantageous because it allows the party making the offer to be creative when issuing especially when putting forward terms about the length of time the offer remains open for acceptance, costs and payment issues.
- The price for flexibility is that Calderbank offer, if accepted, create a binding contract between the parties.
- A Calderbank offer can be useful tool to settle disputes where Part 36 does not apply, for example in cases allocated to the small claims track and arbitration proceedings.
58
What is the Landlord and Tenant Act 1985?
- The primary UK legislation for governing the minimum rights are responsibilities of both Landlord and Tenants.
- The Act was introduced in 1985 and is applicable to all short leases of less than seven years.
- Key obligations of the Landlord include:
1. To keep in Repair the Structure and Exterior of the Dwelling including drains, gutters and external pipes.
2. To keep in repair and proper working order the installations in the dwelling for the supply of water, gas and elec.
3. To keep heating installations in good repair
59
What is the Law of Property Act 1925?
- Prior to 1925, the purchase of land was extremely difficult for potential purchasers
- The process was lengthy and required extensive investigation into the seller's right and title to sell the land.
- The main object of the 1925 legislation was to facilitate and cheapen the transfer of land.
- Section 52 & 53 provide that, subject to limited exception, all conveyancers of land (or interests therein) must be in writing, and where required, by way of deed.
60
What is the Defective Premises Act 1927?
- Primary price of UK legislation that stipulates the liability of landlords' and contractors for poorly constructed and poorly maintained building in addition to any injuries that may occur as a result.
- Contractors and their sub-contractors hold a duty of care to the occupiers of property they construct or modify.
- Landlords also hold a duty of care towards their tenants and third parties who might be injured by their failure to keep their property in a good state of repair.
- Section 1 lays out the duty of care and who it applies to. The duty applies to any person taking on work for or in connection with the provision of a dwelling and is something including not only builders but also electricians, plumbers and other subcontractors.
- Section 4 establishes a general duty to repair and maintain property owed by Landlords to anyone who could reasonably be expected to be harmed by a breach, this covers tenants, their friends and family and also trespassers.
61
What are The Civil Procedure Rules 1998?
The Civil Procedure Rules were introduced to provide rules and practice direction for dispute procedures.
- The rules were designed to improve accessibility to justice by improving the speed of making legal proceedings in addition to making them cheaper and easier to understand for those outside of the legal profession.
- The Small Claims track was introduced for claims with a value of less than £10,000
- The Fast Track was introduced for claims with a value of less than £25,000
- Pre-Action Protocols were also introduced to reduce the number of outstanding issues prior to legal proceedings commencing which encourages:-
1. The early exchange of information
2. Aiding settlement of the claim without commencement of legal proceedings
3. Produces a foundation for efficient case management where litigation cannot be avoided
62
What large branch of legal matters are dilapidations under?
All claims are civil matters that follow civil procedure rules
63
What five-part / method is best adopted for establishing the existence of disrepair?
Dowdling and Reynolds' five part analysis
1. Identify the subject matter of the covenant i.e. what physical item requires repair.
2. Is that item in a damaged or deteriorated condition or not?
3. If so, is it in such a bad state as to fall below the standard required by the repairing covenant?
4. What needs to be done to bring it back to the standard expected by the covenant?
5. Is the work, despite the fact that it is below the standard expected by the covenant, nevertheless of such a nature that it was not contemplated by the parties.
64
How can costs be calculated for Dilapidations?
Should be from a reliable and accurate source, such as:
1. BCIS price book
2. Recent tendered rates
3. Quantity surveyor
4. SPONS Price Book
5. Contractor consultation
65
When does the Leasehold Property (Repairs) Act 1938 apply?
This applies to leases granted for a term of 7 years or more, and has at least 3 years until lease expiry. It aims to protect tenants against onerous interim schedules of dilapidations
66
What does Section 1 of the Leasehold Property (Repairs) Act 1938 require?
It requires the Landlord to serve a Section 146 repairs notice on the tenant. If a counter notice is served within 28 days, the court is only to permit enforcement of the covenant if the landlord can prove that:-
1. Immediate remedy is necessary to prevent the substantial diminution in the value of the reversion of the property.
2. Immediate remedy is necessary to comply with current legislation.
3. If the tenant does not occupy the whole of the property, immediate remedy is required in the interest of another occupier.
4. The breach is capable of immediate remedy at a relatively small cost compared with the consequences of postponement.
67
What does Section 2 of the Leasehold Property (Repairs) Act 1938 require?
Section 2 removes the lessors right to claim expenses if a counter service is served, leaving the tenant only liable for the cost of essential building works.
68
What is Section 18 of the Landlord and Tenant Act 1927?
Section 18 (1)
A S18 (1) limb 1 valuation provides a statutory cap for damages claimed against a tenant, based on the difference between the marketable value of the demise in disrepair and the demise in the condition it should have been left in (the 'diminution in value' of the reversionary interest.) Effectively puts a cap on the repair, and sometime decoration claim but not reinstatement.
The 2nd limb of Section 18 (1): This states that no damages are recoverable, if it can be shown that on expiration of the lease the premises would be demolished or altered to the extent that would render valueless the repairs in question (supersession).
Section 18 (2): This states that the right of re-entry or forfeiture for a breach of repairing obligations shall not be enforceable unless under service of a (Section 146: Law and Property Act 1925) repairs notice - if the lease contains a forfeiture clause and the tenant has failed to remedy the breach within a reasonable time
69
What is Limb 1 of Section 18 (1) of the Landlord and Tenant Act 1927?
Section 18 (10 is gen. accepted to contain 2no. distinct limbs.
Limb 1: Ends after the words "agreement as aforesaid". It is commonly referred to as the "objective" limb, This means that the landlord's actual intention regarding the disrepair of the property after the end of the term are not directly to the question of diminution in value of the landlord's interest. The true diminution in value is instead driven by the market.
70
What is Limb 2 of Section 18 (1) of the Landlord and Tenant Act 1927?
Limb is the "subjective" limb. It looks at the landlord's actual intention at the point that the lease expires. To the extent that the second limb applies, it prevents the landlord from recovering damages for any disrepair which is in fact superseded by the demolition or structural alterations that the landlord intended at the term date.
71
What is the Party Wall Act (1996)?
Framework for preventing or resolving disputes in relation to party walls.
Allows a building owner to carry out works that may otherwise constitute trespassing, whilst also providing protections to the adjoining building owner.
72
What is the definition of a party wall or party structure?
A wall that stands on the land of two or more owners by more than just its footings. Or a structure that separates two buildings.
73
What are the three types of notice that can be served under the Party Wall Act?
1. Line of Junction Notice:
New structure on a shared boundary.
2. Party Structure Notice:
Works to existing party wall or structure.
3. Notice of Adjacent Excavation:
Excavations within 3m or 6m at 45-degree angle of AO foundations.
74
When does a notice need to be served?
Within 1-2 months of the works starting.
75
What happens once a notice is served?
The Adjoining Owner has 14 days to respond and if they consent to the works a Party Wall Award is granted, which protects the Adjoining Owner from any damage resulting from the works.
Schedule of condition should be taken prior to works to protect AO.
76
What is the purpose of the Asbestos Regulations 2012?
To impose a duty to manage asbestos and assign that responsibility on responsible persons and set out regulations for the removal of asbestos.
77
What is the Health and Safety at Work Act 1974?
It is the primary piece of legislation covering occupational health and safety in Great Britain.
It provides a statutory duty on all employers to provide and maintain equipment and system of works that are safe and without risk ot the health and safety of employees, or other who may be affected by their undertaking.
It sets out the general duties which:
* Employers have towards employees and members of the public
* Employees have to themselves and to each other
* Certain self-employed have towards themselves and others
78
Tell me something that is contained within the Health and Safety at Work Act 1974?
The Act aims to:
* Secure the health, safety and welfare of people at work.
* Protect others against risks to health and safety arising from work activities.
* Control dangerous substances.
* Control of emissions into the atmosphere.
* Employers with 5 or more employees must have written health and safety documents detailing the organisations health and safety structure.
79
You mentioned that you keep up to date with relevant Legal and Reg government legislation, please name a recent publication?
Building Safety Act 2022 as an update to the Fire Safety Order.
* Improving cooperation and coordination between Responsible Persons (RPs)
* Increasing requirements in relation to the recording and sharing of fire safety information, thus creating a continual record throughout a building’s lifespan
* Making it easier for enforcement authorities to take action against non-compliance
* Ensuring residents have access to comprehensive information about fire safety in their building.
80
You mentioned that you keep up to date with relevant Legal and Reg RICS publications, please name a recent publication?
* Asbestos: Legal Requirements and Best Practice for Property Professionals 2021. Updated in 2022
* RAAC: Statement from the Royal Institution of Chartered Surveyors
04 September 2023
81
What is the Building Safety Act 1984?
* It the primary piece of legislation regarding the health, safety and welfare of persons in or about a building. Or matters connected such as power and waste.
* It sets out approved documents.
* Creates the role of the Approved Inspector
82
What is the Building Safety Act 2022?
It is the most comprehensive piece of legislation for the built environment in a long time. Following Grenfell and the Hackitt report in was clear the government needed to provide new legislation for high rise building.
It provides a framework for the design, construction and management of safer building.
There are 6 parts to the act.
83
How does the Building Safety Act 1984 define a high-risk building?
* At least 18m high or at least 7 storeys
* Or is of a description specified in the regulations.
84
How should the height of a building be measured in relation to the Act?
* From ground level to the top floor surface of the top storey (ignoring plant and plant rooms)
* If measuring storeys ignore below ground level, roof top plant rooms.
85
What types of buildings are excluded from high risk buildings in the 2023 update to the Building Safety Act?
* Secure Residential Institutions
* A hotel
* Military barracks
86
What is a Relevant Building?
* At least 11m in height / or 5 storeys
* Contains at least 2 dwellings
* Is not a leaseholder-owned building
87
Why are Relevant Buildings important under the act?
* The new leaseholder protections under the Act only apply to relevant buildings.
88
What is the Building Safety Regulator? (BSR)
* They are the Lead Building Control person in charge of all building control bodies.
* BSR will deal directly with designers and developers for buildings over 18m
89
What is the Golden Thread?
* It is a requirements for duty-holders to create and maintain a thread of building information throughout the life cycle of higher-risk buildings. After construction phases, Accountable persons under the act will be the relevant duty holder for the golden thread.
90
What is the Accountable Person Role under the Building Safety Act?
* High Risk Buildings only
* Maintain the golden thread
* Assess risks to the building
* Criminal offence upon the AP if building is let before Building Control sign off
* Must apply for building assessment certificates when requested by the Building Safety Regulator.
* Deal with residents complaints
91
What protection is provided to Leaseholders under the Building Safety Act?
* Financial protection to stop building owners pass on costs of remedial works.
* Legal course of action if building owners do not rectify building
* Qualifying leaseholders non cladding defects capped and spread over 10 years
92
What is a Relevant Defect under the Building Safety Act?
* Fire or structural collapse risk to people
* Must have come from construction or refurbishment
* Must be from 30 years since the act so 1992
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What will count as a qualifying lease?
* A lease over 21 years and paying service charge
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What the updates to the limitation periods under the act?
* 15 years for all construction products and 30 years for cladding.
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What is the guidance note for licence for alterations?
RICS Guidance Note: Licence for alterations in commercial property
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Tell me something that is contained within the Licence to Alter guidance note?
It is now archived and for reference only but, demonstrates the importance of timings and reasonableness of a Landlord or their agents to manage applications in good time and order to avoid unreasonably delayed consent.
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When is a licence to alter required?
When the tenant wants to make alterations to the property which the alterations clause in the lease has not expressly stated does not require landlord permission.
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What would you review when considering an application for a licence to alter?
Existing lease (alterations, improvement, superior landlord)
Existing building (impact on operations, structure etc.)
Financial considerations (insurance, existing warranties etc.)
Statutory (planning and building control)
Other (H&S, sustainability etc.)
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What is contained within a design pack?
Details of the works
Details of materials
Plans & drawings
100
What is Building Control?
They are a local authority or third-party approved building control body who ensure building work complies with minimum standards for Health & Safety of persons in and around buildings, conservation of fuel and power and accessibility.
To ensure an applicant complies with the requirements of the Building Regulations.
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What is it initial consent or approval and when is it needed?
This is a type of Building Control approval consent following an application for building regulation approval before you start work.
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When is a planning application required?
New build, demolition, alteration or change of use to a building.
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Why would planning permission/consent be required for shop front alterations?
They were altering the external appearance of the shop front including the addition of illuminated protruding advertisement sign.
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Name the key legislation relating to planning?
Town and Country Planning Act 1990
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What is Planning Permission?
Planning Permission is the approval given by the local authority under the powers given by the Town and Country Planning Act.
Permission/Consent is required by works which are considered ‘development’
Sometimes referred to as planning consent.
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What is considered development?
Development’ includes:
* Building operations (eg structural alterations, construction, rebuilding, most demolition);
* Material changes of use of land and buildings;
* Engineering operations (eg groundworks)
* Mining operations;
* Other operations normally undertaken by a person carrying on a business as a builder.
* Subdivision of a building (including any part it) used as a dwellinghouse for use as 2 or more separate dwelling houses
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What is permitted development?
Permitted development rights are national grant of planning permission which allows certain building works and changes of use without a planning application.
The Town and Country Planning (General Permitted Development) (England) Order 2015
Government stipulates Permitted Development. They also provide Technical Guidance. 2019 document.
Example of PD:
* Change of use to residential for certain commercial use classes.
* Temporary structures
* CCTV installation/ antennas etc.
* Certain domestic porches and doors.
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When is Planning Permission not required or works are exempt?
Section 55 of the Act defines what work amounts to development and what does not.
Some which do not count as development include:
* Interior alterations (except mezzanine floor increase floor size by 200m2+)
* Building operations which do not material affect the external appearance.
* A change in the primary use of land or building, as long as the before and after falls in the same use class. (i.e. a hairdressers to a butchers = both are retail)
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What is involved in a planning application?
Name of client
Name of agent
Site address
Details of the works
Details of materials
Plans & drawings
Design & access statement
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What is a design and access statement?
Required for buildings larger than 1,000sqm. Function is to illustrate that people are offered reasonable access to the building and building facilities and explain the design principles behind the development.
Include plans, elevation drawings, photographs and specifications.
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What is the timeframe for planning consent?
8 weeks from validation of the application but will be longer for listed building consent. 13 weeks for major development and 18 weeks if Environmental Impact Assessment is required
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What is the timeframe for appeals planning appeals?
Must be within 6 months of the decision.
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What is the General Permitted Development Order?
Permitted Development rights for defined classes of development such as:
* Enlargement of a house (e.g. extension or loft conversion)
* Erection of a porch
* Erection of gates or fences
* Development by the crown
Changes of use within the same class (e.g. shop to restaurant OR industrial unit to business)
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Vauxhall, London
What was the instruction?
A dilapidation assessment ahead of terminating the lease in accordance with their break clause.
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What is a break clause?
A break clause is a lease provision which permits the tenant and landlord to terminate leases on an intermediate date during the lease.
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What can a break clause be?
A break clause can be and often are conditional.
Typical conditions include:
* Vacant Possession provided by the Tenant.
* Issue of Notice
* Compliance with certain lease obligations
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What are the two types of break clause?
* Fixed
* Rolling
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What is an Issue of Notice relating to break clauses?
Written notice to Tenant/landlord within a given notice period that will exercise or activate the break clause as long as any other conditions are met.
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What is Vacant Possession?
This means that the property needs to be empty on the day of completion/termination.
This means the property is empty of people and that the purchaser is able to assume and enjoy immediate and exclusive possession, occupation and control of it. It must also be empty of chattels, although the obligation in this respect is likely only to be breached if any chattels left in the property substantially prevent or interfere with the enjoyment of the right of possession of a substantial part of the property.
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You mentioned recent case law on vacant possession, please can you state these?
Capitol Park Leeds v Global Radio Services [2021]
(Too much reinstatement works undertaken)
Riverside Park Ltd v. NHS Property Services Ltd [2016]
(Demountable partitioning classed as a Chattel)
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Other than a break where else can the requirements for vacant possession be required?
The Yield Up Clause of a Commercial Lease.
An acquisition to be provided with VP on the completion date.
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What is your understanding of the term Dilapidations?
This refer to breaches of lease obligations which are either implied or expressed.
These typically relate to reinstatement, repair and redecoration itemised obligations and the associated costs.
A schedule of dilapidation is normally produced to identify these.
The legal remedy if the dilapidation items are not rectified prior to lease expiry is a claim for damages and a financial settlement.
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What are the 5 stages of Dilapidations?
* Stage 1: Preparation (Obtain all relevant information).
* Stage 2: Inspection (Establish original condition, standard of repair, take into consideration age, character and location.
* Stage 3: Preparation of Schedule of dilapidations setting out the obligations required under the lease, the breaches thought to have taken place along with any identified cost of remedial works required in order
to rectify the breaches.
* Stage 4: Quantified Demand is a document issued setting out:-
o The Cost of the Repair Works.
o The loss of value to the property.
o Loss of rent and services charges.
o Rates.
o Insurance.
o Security.
o Utilities.
o Cleaning.
o Finance Costs.
o Professional Fees incurred.
* Stage 5: The response and negotiation (Under pre-action protocol, surveyors should meet within 26
days).
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Are you aware of any RICS Guidance on Dilapidations?
RICS has produced the guidance note Dilapidations in England and Wales 2016
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Can you tell me something within the RICS Guidance note on Dilapidations?
It provides best practice guidance on
* Producing schedules of dilapidations
* Scott schedules
* Diminution Valuations
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What is the Dilapidations Protocol/ Pre-Action Protocol?
This protocol sets out the particular conduct a court would expect from both parties prior to escalation to court proceedings in relation to commercial property claims.
It establishes a reasonable process and timetable for the exchange of information relevant to a dispute and sets standards for the content and quality of schedules and quantified demands in particular the conduct of pre-action negotiations.
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Other than the response time of 56 days, what else is established under the Dilapidations Protocol/ Pre-Action Protocol?
* Content and Quality of schedules of dilapidations
* Content and Quality of quantified demands
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Why is the Landlord and Tenant Act 1927 relevant to Dilapidations?
It is important as limit and defines the amount a Landlord can claim for a breach of repair under a lease in specific instances.
129
Explain what you mean by a Tenant received a Terminal Schedule?
They received a Terminal Schedule of Dilapidations within the last 12 months of the Lease term.
It was made up of:
* Quantified Statement of Demand
* Scott Schedule
* Claim Summary
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What is the difference between a Terminal Schedule and an Interim Schedule?
Terminal
* Prepared in anticipation of lease expiry, issued within 12 months or shortly after expiry.
* Includes yield up obligations and any required repairs.
Interim
* Prepared in for the planned remedy of any alleged breach that are though to have taken place prior to lease expiry. Does not contain reference to yield up obligations.
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What are the different types of dilapidations schedule that you can issue and when would you issue them?
Interim – minimum 7-year lease and 3 years remaining on the lease
Terminal – before the end of the lease (usually 12 months before)
Final – after the lease has expired
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What is a Dilapidations Settlement?
It is a way often that a Dilapidations claim is dealt with by way of a settlement agreement, rather than court proceedings, whereby a sum will be paid by the Tenant to the Landlord as a full and final release of its dilapidations liabilities.
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What are the stages of negotiation?
* Prepare (Inspection)
* Exchange (Share Relevant Information)
* Bargain (Financial Figure Position)
* Conclude (Agree)
* Execute (Execute by way of Agreement)
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What would you look at before undertaking a dilapidations inspection?
Lease, licences for alterations, any available statutory documents, test certificates, asbestos management survey etc.
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What do you look at in a lease ahead of a Dilapidations inspection?
Extent of demise, Decorations, Repairs, Alterations, Yielding Up, Costs, Notice
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What is a Scott Schedule?
Editable version of a dilapidations schedule which includes columns for tenant’s response and costs.
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What is in a Quantified Statement of Demand?
Details of the landlord, tenant and lease.
Total cost.
Signature.
Date.
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What is in a claim summary?
Total costs from schedule of dilaps, contractor prelims, OH+P, project fees (CA, M&E, Designer, Approved Inspector), surveyor fees for preparation of schedule, consequential losses and VAT.
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What is in the dilaps schedule?
Item number, lease clause breached, description of asset, description of breach, proposed remedy, unit, rate, quantity, total cost of breach.
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What is the dilapidations protocol?
Pre-Action Protocol relating to claims for damages – aims to prevent landlords exaggerating claims and lead the way for early settlement without pursuance of litigation.
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What is the purpose of a dilapidations assessment?
To demonstrate to the tenant the works and associated costs that would be required of them at lease end.
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Describe a dilapidations assessment you have undertaken?
Of a high street bank unit with office accommodation on an internal insuring and repair lease.
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What strategies can you advise the tenant on before lease end?
Undertake the works themselves or reach a settlement agreement with the Landlord or both.
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What are the advantages and disadvantages of the tenant doing the works themselves?
Advantages:
* Tenant will be in control of the costs
* Will avoid any costs for consequential losses
Disadvantages:
* The quality of the works may be disputed by the landlord
Works will need to be undertaken prior to lease end which could be disruptive
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What are the risks of the tenant not undertaking the works themselves?
They will have to undergo negotiation processes which can be lengthy, pay additional fees for surveyors and consequential losses.
146
What are consequential losses in Dilaps?
Rent, service charge etc.
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How can you find out landlord’s intentions for a property when acting for a tenant?
Ask the landlord’s surveyor.
Check the planning portal for any applications
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When producing a dilapidations assessment, do you also comment on the M&E?
Only to reinstate back to the original layout and to provide test certificates for M&E equipment.
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Are you covered to comment on M&E equipment?
I state in the report that this is only covered from a Building Surveyor standpoint.
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What is the main legislation in relation to dilapidations?
Section 18 – Landlord and Tenant Act 1927.
Section 146 Law of Property Act 1925
