The New Dilapidations Protocol

by | Jan 3, 2012 | Dilapidations

For commercial leases that were ending, or had just ended, the way a dilapidations claim should be run changed at the start of 2012. From 1 January 2012 a pre action protocol for dilapidations claims took effect. It sets out what a landlord should send, what a tenant should reply, and the timetable both should follow before anyone goes to court.

The steps

  1. Schedule of dilapidations. The landlord sends a schedule within a reasonable time, generally within 56 days after the lease ends. Each item should identify the lease clause, the breach, the work needed to remedy it and the landlord’s costing.
  2. Endorsement. The schedule should be endorsed by the landlord or, where a surveyor prepared it, by the landlord’s surveyor, confirming that the works are reasonably required and the costs reasonable, taking into account what the landlord intends to do with the property.
  3. Quantified demand. The landlord sets out the sum it is actually claiming, which may differ from the cost of the works.
  4. Response. The tenant replies, usually within 56 days, item by item, with its own endorsement.
  5. Meeting. The parties should generally meet within 28 days of the response to narrow the issues.
  6. Diminution. Before proceedings, the landlord should provide a breakdown of its loss. Where the works will not be done, a formal valuation of the reduction in value is generally expected.

Why it matters

The protocol puts the focus on the landlord’s real loss rather than an inflated list of works. It reflects the cap in section 18 of the Landlord and Tenant Act 1927. A landlord who plans to refurbish or redevelop should expect that to be reflected in the claim. Courts can take failure to follow the protocol into account when deciding costs.

Advice for landlords

  • Know your intentions for the building before you serve the schedule.
  • Make sure the surveyor endorsing it can stand behind every item.

Advice for tenants

  • Start planning well before the lease ends. Doing some of the work yourself, on time, can reduce the claim.
  • Respond in full and on time. A late or thin response weakens your position.

Our Dilapidations service acts for both landlords and tenants. See how we prepared a £357,000 claim for East London offices.