Handbook of Dilapidations by Del W Williams, Eric F Shapiro and James Thom
Published by Sweet & Maxwell
We are not sure that we would describe this as a dilapidations 'handbook' as it is A4 size and approximately 100mm thick (four inches). However, from review and delving into sections we very much found this to be a comprehensive book in a loose leaf format that we believe is updated.
It is very much a dilapidations reference book and is in a loose leaf format that we believe has been updated over the years. Its layout enables you to find dilapidations cases and we particularly like the way it looked at various scenarios and then set out the cases that it thinks are relevant in a spreadsheet type format. It has examples of Schedules of Conditions and Schedules of Dilapidations and Scott Schedules.
It is very readable particularly for a dilapidations book, but only in small doses. Having said that, perhaps we are being slightly unfair and we feel, given the subject matter, that it is very readable as long as you are not put off by the size of the handbook on dilapidations. It comes with the authority of its authors, particularly Eric F Shapiro, who is well known in his dilapidations areas of expertise.
Chapters and Sections
Digest of Cases
Digest of County Court Cases
Forms and Precedences
Section 2 The Parts to be Repaired
This section looked at firstly deciding does the Covenant apply and then to what extent and also looks at checking plans etc.
Section three had an interesting section which identified that no work should be carried out until some part of the property was in a worse condition than set out in the lease.
A two-fold enquiry is required:
1. What condition does the Covenant require?
2. Is the property in that condition or not?
This requires a definition of the word 'repair'. Proudfoot v Hart 1890 identified that the age of the premises at the start of the tenancy is material to the question whether they are 'in repair' or 'out of repair'. As an aside, it was interesting that 'keeping repair' was considered to be the same as the older term 'of put and keep'. This section also looked at the standard of repair and referred again to Proudfoot v Hart, which says 'bearing in mind the age, character and locality of the property on the date which the lease was granted, would the premises reasonably be fit for occupation by a reasonably minded tenant of the class that would be likely to take the property'?
We were also drawn to a passage on Inherent Defects, due to a case that we are presently looking at, which interestingly identified the existence of a design or construction defect in a building is not a state of disrepair unless and until damage or deterioration occur; quoting these cases, Quick v Taff Ely Borough Council 1985 and The Post Office v Aquarius Properties Limited 1987 and Lee v Leeds City Council, which interestingly identified that repairing obligations do not cover the remedy of design defects, however the test is 'degree', we are lead to believe.
Section 4 Scope of the work required
Section Four looks at the scope of work required under the covenant and again considers the term 'repair', but this time looks at whether terms 'good repair', 'substantial repair' or 'tenantable repair' add to the quality of repair required; in a nutshell, it would appear not. They also comment on the 'Torrential' system used on older leases where lots of similar phrases were used, for example, 'good' and 'substantial' repair, and did this mean there was a higher obligation to repair or not. We will leave you to read this section to discover if there is.
Section 5 Quality of the work required
This section looks at 'repair' against 'renewal' and identifies that repair can mean 'patching up' where it is reasonable practice to do so.
Section 6 Decorative Covenants
This section look at decorative covenants which are usual to have in modern leases as 'repairs' do not necessarily carry out a requirement to decorate. Interestingly it notes that a breach of covenant, by not painting periodically, will not necessarily be considered when determining damages.
Section 7 Yielding up, Making good on Expiry of the Lease and Reinstatement
Most leases contain a covenant for the tenant to 'yield up' and some say 'yield up in good repair'. 'Yield up' imposes an obligation on the tenant to deliver a vacant premises, removing all chattels and it also made comments that this does not mean 'abandoning all chattels'!
Note: After each section there is a spreadsheet of cases in relation to the focus of the section.
Section 8 Landlords repairing and other implied obligations
There is also a Sub Section 8a with regard to residential tenancies.
Section 9 Identifying and qualifying the breach
There are interesting comments that a surveyor should establish the reason for the dilapidations:
1. Routine general maintenance.
2. Prior to the termination of the lease.
3. Harassing the tenant (and the word 'harassing' is the term used within the handbook).
This section also briefly looks at supersession and Mather v Barclays Bank 1987 is the case noted.
The section then gets onto the tricky subject of calculating the value of diminution.
Section 10 Enforcement of repairing obligations, Introduction and Forfeiture
Having briefly skimmed through this section my comment would be to be aware of it, but leave it firmly in the hand of the specialist solicitor.
Section 11 Landlords' action for damages and other remedies
Section 12 Tenants' remedies and third party claims
Section 13 Practice and procedure in Dilapidations cases
This section includes the CPR process and does mention here that this was recently updated in 1999, so it may well be that there have not been many updates recently.
Section 14 Dilapidations at Lease Renewal
Chapter Sample Looking at the Text Section in a bit more Detail
We have dipped into the areas that we find of interest:
The Words of the Lease
'Repair', as in 'to repair' or 'to keep in repair'. The word 'repair' has come to have over-riding importance within the lease. Norwich Union Life Insurance Society versus British Rail Board 1987, commented that the word 'repair' is the key word 'that traditionally a sense of caution means additional words are used - which do not necessarily impose obligations'.
Repair has acquired a special importance within the Lease. In Calthorpe v McOscar 1924 the findings were along the lines that there is no importance to the particular form of words used in the covenant, the effect is the same, in my opinion. Whatever words the parties used, providing they plainly express the intention that the premises are to be 'repaired', 'kept in repair' and yielded-up in repair.
Other cases of interest are The Post Office v Aquarius Properties Limited 1985 and Mason v TotalFinaElf UK Limited.
It then also looks at what forms 'repair' takes:
1. The basic obligation to repair.
2. A separate obligation to redecorate.
3. Yield-up in 'repair'.
4. Landlord's right to repair.
Modern Variations on Obligations
We also found an interesting section on Modern Variations on Obligations. This section looks at the modern shorter lease, rather than the traditional 25 year lease with a five year rent review on a full repairing and insuring basis. It commented that the shorter leases tend to use wordings such as 'keeping good repair', 'keeping no worse condition', 'maintain the state and condition'; it is noted that there may be a need for case law to understand precisely how these terms vary from the longer leases.
Lease to be Read as a Whole
This is because:
1. The clause may use a word defined elsewhere within the lease.
2. The repairing covenant may be qualified by another clause in the lease, for example insurance risk may be excluded.
3. A clause may require a procedure to be followed.
Determining Liability Under the Covenant
Determining Liability Under the Covenant was the next section that interested me. Here are some questions to ask:
1. What parts of the property are covered by the Covenant?
2. Are these parts in the condition required by the Covenant?
3. Do decorations fall within the scope of the obligation?
4. What quality of work is required under the Covenant?
Review upon Reflection
Whilst this book has detail and depth it also has a level of readability which we felt was over and above many others. We hope it is still being regularly updated, as without the up to date case laws it loses some of its value - not that a book can ever be a replacement for a good dilapidations specialist lawyer.