Dilapidations and redevelopment; definition of "shortly after"

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  • rentreviewspecialist
    replied
    I think the op's question is looking at s18(1) from the wrong angle.

    The starting point is whether the landlord will be opposing renewal per LTA54 s30(1)(f) "that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding;"

    If so then and if the opposition is successful, ie if the tenant accepts it or if not then the landlord's opposition passes the tests in caselaw, then in the context of any claim for damages for breach of repair, "shortly after" per s18(1) LTA27 wouldn't be defined in isolation but would depend upon the intention of the landlord at the date of termination (sometimes the intention of a third party) of the lease.

    In other words, having opposed on ground of redevelopment, the only reason for the tenancy being terminated is for redevelopment to take place sometime.

    As non-renewal under s30(1)(f) pays statutory compensation, it is important for the tenant to ensure that the opposition is being accepted on that ground only. It is common for landlords to include in s25 notices other opposition grounds in the hope that the tenant will accept without specifying which ground is accepted. If the compensation ground is not expressly accepted then the landlord could wriggle out of paying compensation.

    The mere fact of obtaining planning approval for redevelopment does not mean that the landlord would necessarily oppose renewal. The landlord could renew the lease with a landlord break clause, in which case because the existing lease is not terminated breach of repair covenant in the existing lease could be enforced.

    --

    Some more research:
    "The question is whether the landlord had such an intention at the actual date when the covenant fell to be performed, that is, at the termination of the lease, not at some earlier or later date. The intention at that date must be definite, even though it may be revocable; an intention which was only "provisional" and subject to many factors outside the landlord 's control was held not. to debar the landlord from recovering damages. "

    Per Cunliffe v. Goodman 1950, it is necessary to prove the landlord's definite intention. Intention means more than contemplate: it connotes a state of affairs to bring about. and which, in point of possibility, he has a reasonable prospect of being able to bring about by his own act of volition.


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  • Lawcruncher
    replied
    I cannot find any case where the meaning of "shortly after" is defined or discussed. Even if there is a such a case it is probable that any decision is hedged round with "it depends".

    The thrust of the wording is that the landlord is not entitled to damages if carrying out the repairs would be pointless. With that it mind, I think we can take it that "shortly after" only appears so that the provision cannot be interpreted to mean "at any time after". It can be said of any building that it might be pulled down at some time in the future.

    If a landlord has applied for planning permission to redevelop it is not an absolute indication that he intends to redevelop, but I suggest that it has to be a strong indication. If the landlord argues he has no intention to redevelop he cannot oppose the grant of a new tenancy on the grounds that he intends to redvelop.

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  • Dilapidations and redevelopment; definition of "shortly after"

    s18(1) Landlord and Tenant Act 1927 states that “…no damage shall be recovered for a breach of any such covenant or agreement to leave or put premises in repair at the termination of a lease, if it is shown that the premises, in whatever state of repair they might be, would at or shortly after the termination of the tenancy have been or be pulled down, or such structural alterations made therein as would render valueless the repairs covered by the covenant or agreement.”

    Hi there,I may be in a situation where my landlord will be seeking reimbursements for dilapidations at the end of my commercial lease.I have a full and repairing lease and I did not consult a building surveyor prior to signing nor agree a schedule of condition before signing.The premises is and never was in the greatest of condition being in a post industrial area waiting for redevelopment and was used by us for arts purposes.

    The landlord intends to completely demolish the building and replace it with a mixture of commercial and residential units subject to planning approval.Their development plans are very detailed and in the public domain.

    The question is with the knowledge that planning consent can take time to be granted and then further delays can result in work starting, what would a time frame in law that would satisfy the clause, "would at or shortly after the termination of the tenancy have been pulled down..".

    Does anybody have any experience of this.In practice it might be 18 months to 2 years before the landlord actually gets round to the demolition, does this constitute shortly after? Thanks in advance.

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