The Dilapidations Protocol is Law.
The Dilapidations Protocol was formally adopted by the Court Rules on 1st January 2012, and is now therefore Law in England & Wales.
The process took over ten years to be finally accepted. During this period the Property Litigation Association (PLA) and the Royal Institution of Chartered Surveyors (RICS) have worked together to provide a practical set of rules. It is now 5 years old and working well.
The aim of the Protocol is to ensure that a claim is reasonable, understandable, facilitating settlement before court proceedings. Where litigation cannot be avoided, then the Protocol facilitates the efficient management of the process.
The Pre-action Protocol is produced by the Property Litigation Association (PLA) in consulation with the Royal Institution of Chartered Surveyors (RICS). It is quite clear and unavoidable, and should be used in all claims for damages for breaches of tenant’s repairing obligations, at the expiry of the lease term.
The Protocol encourages the early exchange of full information and enables the parties to avoid litigation by maximising the opportunities for settlement before the proceedings commence. It sets standards for the content of the claim, correspondence and the conduct of pre-action negotiations.
The courts now treat the Protocol as the normal and reasonable approach to pre-action conduct, and non-compliance might bring sanctions against the party concerned. It is therefore essential that surveyors, landlords and tenants understand fully the implications of this document.
The Protocol suggests a reasonable time limit of 56 days, after the end of the term, by which time a landlord should have served the Schedule of Dilapidations. The tenant then has 56 days to respond and thereafter the respective surveyors should meet on site to discuss the claim, and seek to agree as many of the items in dispute as possible.
Landlords be aware! An early assessment of the claim is essential. Although the time limit for service of the Schedule of Dilapidations has been set, surveyors must now carry out a lot of work ‘up-front’. The ‘claim’ should be drawn up as a separate document at the service stage and additional information not previously required should be included.
The claim should identify how it has been compiled, a summary of the facts that the claim is based on, the VAT status of the landlord, all supporting documents, and a date by when the tenant should respond.
A formal quantification of the landlord’s loss based on either a formal diminution valuation or an account of the actual expenditure or a combination of both must be provided by the landlord to the tenant prior to issuing proceedings.
The aim of the Protocol is to facilitate early exchange of documentation to enable surveyors to fully understand the claim, and ultimately to settle before court proceedings. Where litigation cannot be avoided, then the Protocol facilitates the efficient management of the process. Surveyors are encouraged to consider Alternative Dispute Resolution to settle dilapidations rather than litigation.