Key Concepts of Dilapidations Law - Trent The concept of dilapidation is the building defects itself

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Text of Key Concepts of Dilapidations Law - Trent The concept of dilapidation is the building defects itself

  • Unit 1: Key Concepts of Dilapidations Law

    BUILDING PATHOLOGY & DILAPIDATION

  • Learning Objectives

    � Explain what is building pathology and its relevance

    � Understand how the concepts of dilapidation relate to buildings and leases

    � Illustrate the relationship between the use of building dilapidation concepts and building performance

  • As defined by the the Association of European Experts in Building and Construction(AEEBC, 1994), it relates to three interrelated areas of concerns:

    � Identification, investigation and diagnosis(analysis) of defects in existing buildings;

    � Prognosis(prediction) of defects diagnosed, and recommendations for the most appropriate course of action having regard to the building , its future and resources available.

    � Design, specification, implementation and supervision of appropriate programmes of remedial works, monitoring and evaluation of remedial works in terms of their functional , technical and economic performance in use.

    Definition of Building Pathology

  • Other definitions include:-

    � The study of failures in the interrelationship of building structures and materials with their environments, occupants and contents (Hutton & Roston 1989)

    � The study of failures over time in building materials and components (Groak 1992 p 105)

    � The systematic treatment of building defects , their causes , their consequences and their remedies (CIB W86 Building Pathology Commission, 1993)

    � The scientific study of abnormalities in the structure and functioning of the building envelope and its parts; it seeks to study the interrelationships of building materials, construction, services and spatial arrangement with their environments, occupants and contents (Singh, 1997)

    Definition of Building Pathology

  • � Essentially building pathology is the study of building defects and remedial actions in a scientific approach.

    Definition of Building Pathology

  • � Determine financial security against an intended loan or mortgage or change of ownership

    � Provide confidence for a potential purchaser or tenant undertaking repair liabilities, either by way of a report commissioned directly by the purchaser or by the vendor wishing to confirm or disclose material facts

    � Determine stability and risk of failure following natural or man-made disasters

    � Establish liability for disrepair (dilapidations)

    � Diagnose defects when symptoms appear to occupiers

    � Determine the effectiveness of past repairs or maintenance

    Relevance of Building Pathology

  • � Assess levels of disrepair in advance of legal proceedings

    � Ensure compliance with legal requirements

    � Understand and document factors affecting conditions

    � Provide a basis for planned work (repair, maintenance) or

    � Provide a basis for physical change (adaptation, change of use)

    Relevance of Building Pathology

  • Building Pathology Principles and Practices

    The principles of Building pathology relies on the follows:

    � detailed knowledge of how a building is designed,

    � how a building is constructed, used and changed,

    � various mechanisms by which its structural, material and environment conditions can be affected.

  • Defined as “a state of disrepair (in property) for which there is a legal liability to remedy”.

    Accordingly, three elements must exist:

    � A building

    � A lease

    � A breach of covenant.

    Dilapidation Concepts

    a : a written agreement or promise usually under seal between two or more parties especially for the performance of some action the deed conveying the land contained restrictive covenants b : the common-law action to recover damages for breach of such a contract

  • The concept of dilapidation is the building defects itself and is related to potential claims between landlord and tenant in a lease situation.

    Before a lease is executed, the landlord would have handed over the property or building to the tenant in a particular state and condition.

    Dilapidation Concepts

  • During the lease, the tenant is typically expected to maintain the property condition in a tenantable condition.

    And upon termination of lease, the tenant is to handover the property or building back to the landlord with vacant possession. Throughout this entire process, the property condition may vary or even deteriorated and this is where dilapidation claims arise and the use of building pathology is useful.

    Dilapidation Concepts

  • In a lease the following contractual clauses are common:-

    • Demise

    Tenant’s obligations are limited to the property that has

    been demised to it. Landlord’s obligation is to repair, and

    limited to areas not required to be repaired by the

    tenant. The surveyor should understand what is the

    physical subject matter of the relevant covenants.

    • Repair

    Some covenants say nothing more than that the

    property is to be kept in good repair. Others, prepared

    using the ‘torrential’ form of drafting, contain a long list

    of additional requirements, such as to uphold, maintain,

    rebuild, renew, amend, etc.

    Dilapidation Concepts

  • In a lease the following contractual clauses are common:-

    • Decoration

    If there is an obligation to decorate, can be in a separate covenant or

    as part of the repair covenant. It is usual, but by no means universal,

    for there to be an obligation to decorate at specific intervals or on

    particular dates during the term, as well as within some period, which

    is usually specified, shortly before the end of the term.

    • Alterations and reinstatement

    the lease and any licences or both documents might contain

    provisions relevant to the surveyor’s instructions. An obligation to

    reinstate lawful alterations will only arise if there is express provision

    in the lease or licence, which may or may not require prior notice to

    be served. If there is a requirement for prior notice, that notice must

    be served in compliance with any associated conditions if the

    obligation is to be enforceable.

    Dilapidation Concepts

  • In a lease the following contractual clauses are common:-

    • Yielding up This clause might simply require the property to be yielded up in accordance with the lease covenants. May impose a different set of obligations; for example, complete re-carpeting regardless of the condition of the existing carpeting. If the clause is relevant to the appointed building surveyor’s instructions, that is to say, the lease is shortly to end or has ended, the clause should be considered carefully.

    • Statutory obligations Leases normally include covenants requiring the tenant to comply with and carry out works required by the provisions of any relevant statute or regulation. The appointed building surveyor should consider not just the lease covenant but the actual provisions of the relevant statute or regulation, or take legal advice on those provisions, if the surveyor believes they are relevant to his instructions.

    Dilapidation Concepts

  • The Basis for Building Pathology and Dilapidation

    In order to understand what is building defects, we would need to know whether a property or building is indeed performing. A deficiency of building performance or certain aspects of building performance – structural , building services, material, functional performance etc - is therefore one way to consider that a building defect has resulted.

    A building performance can be measured based on these requirements:-

    • Functional requirements

    • Performance requirements

    • Statutory requirements

    • User requirements

  • The Basis for Building Pathology and Dilapidation

    Functional requirements

    Every building are expected to fulfill certain basic functional requirements. These requirements are primarily concerned with:-

    � protection from the external environment,

    � human comfort,

    � and organization of activity and space.

    � the creation of a particular sense of identity or place,

    � and the control of competing or conflicting internal uses.

  • The Basis for Building Pathology and Dilapidation

    Performance requirements

    The way in which it meets these demands, both as a building and as a collection of related and interrelated parts, may be determined by how it performs in relation to a number of defined performance measures or standards. The performance requirements of a building and its various elements may be considered under the following headings:-

    � Access and egress

    � Appearance

    � Durability

    � Dimensional stability

    � Strength and stability

    � Weather exclusion

    � Sound control

    � Thermal control

    � Fire protection

    � Lighting and ventilation

    � Sanitation

    � Security

  • The Basis for Building Pathology and Dilapidation

    Statutory requirements

    There are various statutory and non-statutory requirem