Dilapidations: Identifying the boundaries of liability

This paper considers the problem of identifying reliable information in the interpretation of the content of the lease as well as the valuation. A surveyor would hope to be able to give reliable guidance to their client but decisions at first instance have been unpredictable. The common law guidance is volatile, with even decisions of the Court of Appeal being reversed by the Supreme Court.1 The expected standard of repair is set out in the contract. Instances where this has been changed, adjusted or clarified in litigation are identified. The issues raised by improvements that are accepted as part of a repair are discussed, as well as those occasions where this has resulted in the proposed remedy not being the liability of the tenant. The varied approach to calculation of the diminution in value has often been ‘judge-led’ rather than valuer-driven. This has resulted in a variety of outcomes that have not always been predictable. The content of this paper deals with the position in England and Wales (save for the Building Regulations reference as Wales has its own Building Regulations). Scotland does not have the Landlord and Tenant Act 1927 and there are also many other differences compared to English law. For that reason this paper does not refer to the position in Scotland. The boundaries of liability are important to establish but difficult to achieve.