Articles

James McAllister has authored a number of articles on dilapidations and party walls practice & procedure for various professional bodies, surveying magazines, online publications and peer-reviewed journals.  Some of his articles are reproduced here by kind permission. 

Dilapidations:

'Hidden Liabilities'

The subject of dilapidations is traditionally set against the contractual backdrop of the lease; specifically the express terms carefully drafted by the covenanting parties.  This usually focusses on the repairing responsibilities of the tenant...

This article originally appeared in RICS Building Surveying Journal, May/June 2015 and is reproduced here by kind permission from RICS.

'For Better Or Worse?'

'Expressing Reservations'

This article originally appeared in RICS Building Surveying Journal, December 2017/January 2018 and is reproduced here by kind permission from RICS.

'Dilapidations: The Devil In The Detail'

Dilapidations can be a costly, and often unforeseen, entry in the balance sheet of any commercial property occupier holding a lease with express repairing responsibilities. This can leave a very bitter aftertaste for tenants looking to vacate a property they may have outgrown, or perhaps more topically, wish to downsize from.  Ignorance, as always, is no defence...           

'Dilapidations & VAT: The Taxing Truth'

Let’s start with a fact: Dilapidations is outside the scope of VAT as far as HM Revenue & Customs are concerned. So there we have it, VAT need not feature in dilapidation claims and settlement agreements. If only it were that simple.

Whilst VAT technically has no place in dilapidations, for reasons that shall become clear, there are instances where an allowance for VAT can legitimately be included, despite HMRC’s seemingly clear and robust view on the matter...

'Dilapidations On The Rise'

Dilapidations is a fact of life in commercial leasehold property. As an area of Landlord & Tenant law, dilapidations, as a concept, has been around for hundreds of years allowing the courts to put to test everything from the meaning of repair to valuing the impact of disrepair, and an awful lot in between. In recent years, the volume of dilapidation claims has been on the increase, but so too have the efforts of those professionals who deal with them in promoting transparency and fairness; the objective being to reduce the number of claims proceeding to litigation and eliminate fraudulent abuse of the process...

'Dilapidations & Mediation: A Perfect Marriage?'

Dilapidation claims in commercial property are on the increase; this is widely acknowledged by all leading practitioners in the field and was covered in some detail in our article 'Dilapidations On The Rise' [2011]. Fortunately, most claims are settled well before proceedings are issued and counsel appointed. However, a fair few claims still suffer the recalcitrance or obstinacy of the associated parties and/or their ‘experts’, and so a courtroom battle will ensue. The obvious disadvantage to this being that the associated legal costs will invariably outweigh the ‘value’ of the claim (i.e. the disparity between both positions) meaning the only victory may be of the Pyrrhic variety...

'Dilapidations & Loss Of Rent: Lost In Translation'

Loss of Rent is perhaps the most misunderstood and misplaced aspect of any dilapidations claim. This has become more prevalent in recent years, fuelled by the economic climate and an ever-increasing need for landlords to stem the inevitable loss they will suffer by owning a vacant property. But is the loss of rent claim ever actionable? If so, when?...

'Dilapidations & Break Clauses: Breaking The Rules'

Most businesses will occupy premises they do not own. This requires the company or company owner to take a business lease where terms can vary from a matter of months to decades. Traditionally, commercial property leases were 20-25 years, often known as the ‘institutional lease’, but the changing nature of business occupation over recent years, coupled with increasing economic uncertainty, has seen the average term of the business lease contract substantially...

'Dilapidations & Fixtures: In A Fix'

The term ‘fixtures and fittings’ permeates everyday language, even outside the world of commercial business leases. However, the definition of these seemingly innocuous words, and the wider implications they may have for tenants, deserves careful consideration...

'Schedules Of Condition: For Better Or Worse?'

Business tenants with the foresight to have obtained a Schedule of Condition at the outset of their lease may take some comfort in the fact that they have the ‘protection’ of documentary evidence as to the condition of the landlord’s premises at lease commencement. What they may not know, certainly at the time of signing the lease, is just how much protection this might afford them; and as with all things legalese, it hangs on the wording...

'Dealing With Dilapidations'

Most tenants of commercial property will be familiar with the term ‘dilapidations’. To the lay person it perhaps conjures up an image of dereliction and decay, but business tenants who have already vacated premises they once leased, or even to some who are about to sign a commercial lease, will be only too aware the term has a significantly wider definition with far-reaching ramifications...

'Defending A Dilapidations Claim'

With the exponential increase in dilapidation claims within commercial property over recent years, few business tenants avoid the curse of the visiting Landlord’s Surveyor and the ensuing consequences during their occupational existence; fewer still escape scot-free from an end-of-lease claim for damages where their concept of what comprises good repair differs significantly from the Landlords...

'The Dilapidations Protocol: Playing By The Rules'

It has long been recognised that claims for damages under the banner 'terminal schedules of dilapidations' have an unsavoury reputation.  The invariable absence of landlords being able to stand by the loss they avidly procalim they have suffered and the inherent opportunities for fraud have catalysed the need for some rules...

Party Walls:

'Is The Party Wall Act Now Obsolete?'

A recent High Court decision confirmed the Party Wall etc. Act 1996 does not apply in the absence of a notice.  Will this create a rogue's charter?

Please click here for the article.

Article co-authored with James Holton (Senior Associate Solicitor at DTM Legal LLP) and Philip Byrne (Barrister at St John's Buildings) for the RICS Built Environment Journal.

'Neighbourly Disputes: An Effective Remedy?'

The most adversarial (and often acrimonious) time any of us will have to deal with our neighbours is when their imposing extension threatens to blight our otherwise unspoilt views; or where our opinion on the correct location of the boundary differs from theirs, meaning the putting up of the new fence awaits a resolution to the impasse.  Many ‘neighbourly’ disputes begin over something even more trivial, such as noise, on-street parking arrangements and, of course, the small issue of that 30ft Leylandii.

Sadly, what often starts off as something minor can escalate in to a full-blown dispute, and may even end up in court…

'Going It Alone: ex parte Awards'

I recently had to serve my first ‘ex parte’ award.  Fully expecting it to be appealed, I went the extra mile to ensure I did all that was humanly possible to demonstrate that my actions in going ex parte were fully justified.  Despite ruffling the feathers of my recalcitrant counterpart, the award was thankfully not appealed, and so the works specified within it were allowed to continue unencumbered by the shortcomings of my opposite number.  This was a result, but could so easily have had a very different outcome… 

'Is The Parte Over?'

The recent Court of Appeal decision in Patel v Peters & Anors [2014] EWCA Civ 335 has provided some welcome clarification on the validity of ex parte awards pursuant to the operation of sections 10(6) and 10(7) in connection with fees, particularly where a late, but effective, response is received prior to issue of the ex parte award.  This case also outlines the correct methodology and procedure for resolving disputes over fees…

'I Have My Reasons'

There is no legal requirement for an award pursuant to the Party Wall etc. Act 1996 to contain reasons behind the determination.  This is in stark contrast to awards made under the Arbitration Act 1996...