RICS Surveyors abuse or do not understand dilapidations

The RICS promotes themselves as an organization that “everything we do is designed to effect positive change in the built environment”.  Given this statement it is not unreasonable to expect their members to understand the very subjects that they promote as having excellency and professionalism.  I did smile at the hypocrisy.

One such area is the “law of dilapidations” and it continually disappoints me to see that RICS chartered surveyors either do not understand the law of dilapidations or purposely abuse it in order to wrongfully assert a claim for their client (the landlord) and claim grossly inflated costs for alleged damages where there is no liability or where the law prohibits abuse of the law of dilapidations.

They seem devoid of any knowledge to the existence of the RICS 7th Edition 2016 Guidance Note on Dilapidations. Dr Antino ( www.apaproperty.com ) is currently involved in several live dilapidations claims where he is acting for the tenant.  One case relates to the tenants electing not to renew and vacated the premises.  The premises in this case was relatively straightforward because it was an open land with a crushed hardcore hardstanding, palisade fencing around the perimeter one access road down one side of the yard and some drainage and kerb stones.

The schedule of condition contained a photographic schedule of the condition of the yard at the commencement of the lease. 

It would or SHOULD be very easy for a landlords surveyor to identify what dilapidations exist (if any) when preparing a schedule of dilapidations. 

In this case the landlords surveyor served a schedule of dilapidations under the narrow compass five areas as follows: -

 

1)    Damaged palisade fencing.

2)    Damaged kerb stones.

3)    Blocked drains.

4)    Uncontrolled vegetation growth.

5)    Hard standing area to yard.

 

The schedule of dilapidations was silent on any diminution valuation.  MISTAKE NO. 1.

 

value of this alleged dilapidations was assessed by the landlords surveyor at £123,726.00.  The majority of that related to the removal of the hard standing.

 

Dr Antino was instructed by the tenants solicitors to respond.  Dr Antino met at the site with the landlord.

The landlord advised that after the tenants had vacated some 12 months prior to the schedule of dilapidations being prepared the travelling community trespassed onto the land and therefore the landlord blocked the gates.  He also boasted blocking of the gates whilst the travelling community were inside.  He was subsequently advised to remove the concrete blocks.

As a consequence of Dr Antino’s investigations with the local authority planning department to see whether there was any intended works that may negate any alleged dilapidations, Dr Antino identified that the landlord had been served with an enforcement notice.  It transpired that the land was greenbelt and should have been kept as open shrubland.  MISTAKE NO. 2.

The landlord in creating the secure yard area had done so unlawfully and had been receiving rent unlawfully.

The landlord was asked to comment on this and he confirmed that he was subject to an enforcement notice.

Of notable interest was the fact that the schedule of conditions photographs showed that the hard standing surface pre-existed the commencement of the lease.

It was not clear from the schedule of dilapidations why the landlords surveyor was alleging that the tenant should have to remove all of the hard standing area.  MISTAKE NO. 3.

The landlords surveyor had not undertaken any section 18(1) diminution exercise in fact his report was completely silent on that and that is a fundamental error by any landlord surveyor. Why? because it places a cap on any potential dilapidations liability.  The cap being the diminution in the reversionary interest.  MISTAKE NO. 4. (Section 10 of RICS Guidance Note).

In this case it is very important because the land had to be returned to open scrubland, and the landlord was being forced by the council to remove the palisade fencing, the access road, the drains and the kerb stones and the hard standing because they were put in there by the landlord unlawfully.

 

There was no dispute that some of the palisade fencing had been damaged.  What was not clear was whether it was damaged during the tenancy or after the tenancy when the travelling community took unlawful occupation and were then blocked in and damaged the fence in attempting to get in and out of the land.

 

It had been over a year since the tenants had vacated the site and there was no evidence from the landlord that they had mitigated any vegetation growth, but do not forget this should be open scrubland, so wild growth of vegetation around the perimeter would clearly satisfy the recognised greenbelt use for the land so there could be no dilapidations claim because the vegetation did not require removal.

 

The schedule of condition photographs showed all the kerb stones were damaged prior to the lease, no damage there.

 

In any event they had to be removed as were the drains and the access road to comply with the enforcement notice.

 

This was a clear case of the landlord’s surveyor (who was aware of the enforcement notice), simply trying to falsely place a dilapidations claim on the tenant.  MISTAKE NO. 5.

 

The landlord’s surveyor knew that there could be no liability because the landlord had to remove everything including the hard standing to return the land to open scrubland.

 

The landlords RICS surveyor knew that there was no diminution in the reversionary interest because the land has no value as open scrubland and cannot be used for anything other than walking.  MISTAKE NO. 6.

 

Surveyors simply do not understand “supersession”!!

 

It is shocking and unacceptable that members of the RICS, (and this is not an isolated case in Dr Antino’s experience of RICS surveyors abusing the law of dilapidations) trying to force a tenant into paying when there is no liability and no justification.