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Dilapidations

Dilapidations are a specialised field and require as good a legal understanding as technical expertise and negotiation skills.

Irrespective of the type of instruction, an examination and correct interpretation of the lease documentation is paramount. The lease would set out the manner in which the premises and any common parts were accepted; repairing obligation clauses; maintenance requirements; redecoration cycles; reinstating provisions; yielding up; statutory requirements; professional fees; service of notices and schedules; service charge recoverability amongst other matters.

Fitzpatrick Property Consultants provide three types of services to landlords and tenants:-

1. Dilapidations Assessment Report; this is prepared either in advance of acquiring an interest in a property or during a leasehold occupation one or two years in advance of lease expiry. The purpose is to assess your potential liability for factoring into the acquisition, which may result in a schedule of condition being prepared in respect of a leasehold interest. Alternatively, the assessment may be utilised for budgeting or 'exit' strategy purposes in advance of a terminal schedule of dilapidations being served by a landlord.
2. Interim Schedule of Dilapidations; are issued by landlords during the course of a lease, where concerns exist over the type or level of maintenance; disrepair of premises or non-compliance with the tenants lease obligations. We can prepare schedules for landlords or defend schedules served on tenant's behalf.
3. Terminal Schedule of Dilapidations are prepared by landlords in advance of lease expiry, unless the lease provides otherwise.

Notwithstanding the above, landlords may also have obligations under a lease for example, a common law obligation under Scottish law to keep premises 'wind and watertight' unless this obligation is transferred to tenants under leases, which does not always occur. There are a number of other critical common law obligations under Scottish law, which can be exploited by tenants, unless leases are suitably documented.

Differences in Dilapidations under English and Scottish law

•  There are fundamental differences between dilapidations in Scotland, which are persuasive and dilapidations in England & Wales, which are prescriptive. There is no statute relating to commercial leases in Scotland. In England and Wales, the relevant statute includes the Law of Property Act 1925; Landlord and Tenant Act 1927 and 1954; Leasehold Property (Repairs) Act 1938, Defective Premises Act 1972 and The Civil Procedure Rules 1998 etc.
• In Scotland, the obligations of a landlord and tenant are defined primarily in the lease, which is required to be registered. In addition, interpretation of lease terms under common law will influence decisions on liability.
• In the absence of Scottish case law, decisions by English courts are not binding, although these may be persuasive.

Fitzpatrick Property Consultants specialise in preparing, defending and negotiating dilapidation claims for both landlords and tenants ensuring that landlords claims are maximised reflecting the lease terms. Furthermore in England and Wales, schedules of dilapidations would reflect the civil procedure rules and established protocol, which do not apply in Scotland.

When acting for tenants, we use our technical expertise, tenacity and commercial awareness to maximising savings as part of a financial settlement or implement appropriate works as part of the 'exit' strategy. This service may be in isolation or in parallel with relocation services.

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