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Pre-Action Protocol for Disrepair Claims in Commercial Property Comes into Force

Dilapidations claims involve the resolution of tenants’ obligations to repair and decorate the property let to them, usually at the end of their lease. The tenants’ obligations to repair and decorate are normally set out in covenants contained within their lease. A failure to comply with those covenants may give the landlord a claim for damages.

A pre-action protocol for dilapidation claims was introduced by the Property Litigation Association in 2002 to help parties resolve claims before the issue of legal proceedings. The protocol sets out the information that a landlord is expected to give the tenant about the claim and the information that the tenant is expected to give in response.  The protocol was subsequently endorsed by the Royal Institution of Chartered Surveyors (RICS) as ‘best practice’, and has been adopted and employed ever since by both surveyors and property litigation practitioners.

The snappily entitled “Pre-Action Protocol for Claims for Damages in relation to the physical state of commercial property at termination of a tenancy (The “Dilapidations Protocol”)“  is now formally adopted as a pre-action protocol under the Civil Procedure Rules pursuant to the 58th Update on 6 April 2012, although as yet the protocol has not been published by the Ministry of Justice website on the Civil Procedure Rules pages. The formal adoption means that compliance with the protocol is more important than ever as conduct can now be assessed by a Court when considering the question of costs.

Please speak to Julian Johnstone, Head of Druces LLP’s Litigation & Dispute Resolution team or Benjamin Lomer, Senior Associate in the same team for more information