Dilapidations

The Modern Law and Practice

Author: Dowding & Reynolds

Publishers: Thompson, Sweet & Maxwell

Background: Dowding: QC

Reynolds: QC and Honorary RICS

Overview

The book starts with a table of contents, which was somewhat off-putting for myself. It does give an indication to the depths this book goes into. The book's style is to look at dilapidations from basics and relate the cases to the appropriate sections as the book goes along. The book is very detailed and cross-references at the foot of every page, but we did find it readable once we concentrated.

Readability

At first I found this heavy going and in fact noted that that it certainly is not holiday reading. However, it is probably not meant to be read in one go! I did find within the book several very interesting chapters set out, for me, in a format very useful for surveyors working on dilapidations cases, something I have not found in books that I have read on dilapidations so far. For example, each time I have been reading these dilapidations books my aim has been to glean further information based on dilapidations cases I am currently dealing with. In this instance the book was very useful.

Chapters

Chapter 1: The existence of the obligation.

Chapter 2: The duration of the obligation.

Chapter 3: Who can sue and be sued.

Chapter 4: The construction of repairing and other covenants imposing liabilities for dilapidations.

Chapter 5: The variety of obligations imposing liability for dilapidations.

Chapter 6: Introduction to the five part analysis of liability under the general covenant to repair.

Chapter 7: The first question: “What is the subject matter of the covenant?”

Chapter 8: The second question: “Is the subject matter of the covenant in a damaged or deteriorating condition?”

Chapter 9: The third question: “Is the nature of the damage such as to bring the condition and subject matter below the standard contemplated by the repairing covenant?”

Chapter 10: The fourth question: “What work is necessary in order to put the subject matter of the repairing covenant back into the contemplated condition?”

Chapter 11: The fifth question: “Is that work nevertheless of such a nature that the parties did not contemplate it and would be the liability of the covenanting party?”

Chapter 12: The application of the repairing covenant in relation to commonly encountered defects.

Chapter 13: Mechanical and electrical services and plant.

Chapter 14: Forms of express repairing covenants.

Chapter 15: Other forms of covenant imposing liability for dilapidations.

Chapter 16: Decoration

Chapter 17: Covenants to re-instate alterations.

Chapter 18: Destruction of the subject matter.

Chapter 19: The landlord's implied obligations towards the tenants at common law.

Chapter 20: The landlord's implied obligations towards the tenant under Statute.

Chapter 21: Implied obligations and duties of the tenant to the landlord.

Chapter 22: The considerations affecting the performance of the landlord's obligation to repair.

Chapter 23: Considerations affecting the performance of the tenant's obligation to repair.

Chapter 24: Liability to repair under sub-leases.

Chapter 25: Fixtures

Chapter 26: The landlord's remedies of breach of covenant on the part of the tenant.

Chapter 27: Forfeiture

Chapter 28: Other remedies during the term.

Chapter 29: Damages at the end of the term; claims to which Section 18(1) of the Landlord and Tenant Act 1927 applied.

Chapter 30: Valuations under the first limb of Section 18(1) of the Landlord and Tenant Act 1927 with worked examples.

Chapter 31: Damages at the end of the term (two); claims to which Section 18(1) of the Landlord and Tenant Act 1927 does not apply.

Chapter 32: The tenant's remedies for breach of covenant on the part of the landlord.

Chapter 33: The recovery of fees and costs.

Chapter 34: Tax aspects of dilapidations.

Chapter 35: Dilapidation questions arising in related fields.

Chapter 36: Dilapidations claims and practice.

Chapter 37: Dilapidations claims under the Civil Procedures Rules.

Chapter 38: Alternative ways of resolving dilapidations claims.

Chapter 39: Proposals for reform.

The book we reviewed is dated 2004 and we do believe that updates have been written since.

Sample Chapter

At first we looked at Chapter 5, which is a fairly standard chapter relating to repairing obligations, with the usual discussion on the word “repair” as to how it is qualified, for example by good or substantial repair. The chapter also looks at the redecoration obligation and reinstatement of alterations obligation as well as statutes, all of which are very important generally.

Then we discovered Chapter 12. This really is a must read chapter and we feel is so useful to the chartered surveyor specialising in dilapidations.

Chapter 12: “The application of the repairing covenant in relation to commonly encountered defects” is the introduction. Then it looks at subsidence, roofs, cladding, steel frames, concrete, damp, defective windows, asbestos and contamination. To give the flavour of what is in this section let us briefly look at each section:-

For example, underpinning looks at the question of whether this work is too extensive to amount to “repair”. It then looks briefly at four relevant cases and further concludes with other cases.

Roof section, which looks at the liability of the tenant for complete replacement of the roof to repair and when there is a repair to a roof and improvement. Again, with the cases that illustrate the point, with brief summaries of them highlighting the relevant section.

Cladding, the next section, looks at whether the removal and replacement of the entirety of the cladding is too extensive to constitute repair.

Steel frame. It considers how a conventional lease is drafted for more appropriate for traditional buildings.

Concrete. This looks at problems associated with the failure of high aluminium cement (HAC) and wood wool shuttering. It is an interesting point of discussion.

Damp. Divided into penetrating damp, rising damp and condensation. This again looks at each section, bringing up the relevant case history.

Defective windows. This looks at when replacement is repair or improvement.

Asbestos. Commonly used many years ago. This discusses the arguments for and against its replacement under a repairing covenant.

Lastly contamination is looked at.

Finally, we have to mention Chapter 13, “Mechanical and electrical services and plant.” An area which we feel does not tend to be given the attention it deserves, as often these areas need replacement on a different basis to the building as a whole, but looks at the five part approach. See the chapters for the five questions to ask.

Review Upon Reflection

For me this is a must buy and an excellent book, we would use it more as a reference book when you have a specific issue to look at on a dilapidations case and we would add lacking in pictures!