Outstanding Expert Services to Construction and Engineering Law 2024
Dr Antino of APA Property Services Ltd (www.apaproperty.com) has received further recognition for “Outstanding Expert Services to Construction and Engineering Law 2024” by the Federation of Forensic and Expert Witnesses.
It is with great pride that Dr Antino’s further expertise has been recognised in the field of both Construction and Engineering Law.
The Award follows his seminal paper on “Is Adjudication suitable for dilapidations disputes” as published in the Chartered Institute of Arbitrators (CIArb) Journal November 2023 issue 89.4.
Dr Antino has long held the view that the historic approach adopted by landlords with respect to dilapidations claims has been fundamentally wrong and seen as an opportunity to obtain a “windfall cash payment” for alleged liabilities that do not legitimately arise under any aspect of the lease.
This approach has been predominantly advanced by chartered surveyors who have little understanding and indeed no proper training as to what constitutes a dilapidation and/or indeed the principles that exist both at common and statutory law to prevent a landlord’s aggressive approach to obtaining windfall payments.
In most cases, chartered surveyors fail to understand that a claim of dilapidations is a legal claim for an actual loss incurred by the landlord. No loss no claim.
Attempts to limit dilapidations can be found under section 18(1) of the Landlord and Tenant Act 1927 but surveyors still overlook or simply do not understand the principles of that statutory legislation.
In 2023 Dr Antino was instructed in two particularly large dilapidations claims against the landlords. One claim was more than £350,000, the other more than £600,000 for internal repairing liabilities only. Other cases are ongoing.
The schedules prepared by the landlord’s surveyors included items such as reinstatement works granted under a licence to alter. These are not a dilapidation claim element and fall under a completely different repairing/reinstatement liability.
Furthermore, the amounts allocated against various alleged disrepair very seldom if ever reasonable a true reflection of the actual costs to do the works.
In both situations above, the landlords adopted a very aggressive approach on the misunderstanding that the lease says that the tenants should pay their costs when engaging surveyors, solicitors etc. This is fundamentally wrong; it is only reasonable costs and if the claim and/or elements of it are unreasonable then the costs are reduced.
The landlords eagerly assume that they do not have to pay anything or if they did, that they would recover it from the tenant, but that is not the case. Just because the landlord’s surveyor says that the dilapidations have a value of “X” does not mean that it is realistic, accurate and/or indeed true reflection of the landlord’s loss.
Because of these strategies adopted by the landlords, Dr Antino has advised clients that they should make an application to the CIArb and have the dispute resolved through Adjudication.
For those that are not familiar with the Adjudication procedures, this places a limit on each party that they are not entitled to recover their costs incurred in the Adjudication but also protects them from costs from the other side.
You can imagine the sharp intake of breath from landlords who are aghast Dr Antino’s approach and potentially having to spend money to pursue a claim, (whether they are right or wrong) without the right to recover their costs. Hence the reason why Dr Antino wrote his paper and submitted this to the CIArb for publication.
Dr Antino’s approach has not yet been challenged in Court, but the approach adopted by Dr Antino has brought landlords to the table to negotiate realistic settlements. In recent dilapidations towards the end of 2021/22 and early 2023 Dr Antino was able to negotiate up to 60% reduction of the alleged dilapidations claims thus avoiding both litigation and Adjudication.
It is Dr Antino’s opinion that the tide has changed; landlords cannot continue to see dilapidations as a get rich quick or windfall scheme which is fundamentally wrong against all principles of contract law.
If a person does not suffer a true and quantifiable loss then they cannot claim for something that they have not lost.
