Introduction
This is a report on legal advice (based on the UK law) for the landlord or tenant on the resolution of specific problems identified, such as dilapidations, asbestos, health and safety matters, Equality Act (and DDA), and fire safety issues.
Dilapidations
Youens Finance Ltd holds the Head Lease of 65 Graham Street from Pain Estates Plc on full repairing and insuring (FRI) basis for 20 years. FRI implies that the business proprietor agrees to “pay for insurance on the building and take on responsibility for all repairs, both internal and external, during the term of the tenancy so that it will be in as good a condition at the end of the leasing period as it was at the start” (West and Huntsman, 2001).
Therefore, it is necessary for both Pain Estates Plc and Youens Finance Ltd to understand every financial and practical repercussion of the contract. First, the tenant must acknowledge the condition of the property with the Schedule of Condition. The lease term should reflect dilapidations. Dilapidation refers to deterioration in the condition of the property during the lease term.
The FRI entitles Pain Estates Plc to serve an official Notice of Dilapidations to Youens Finance Ltd for any presumed loss in the value of the building. However, the Inventory of Contents protects both Pain Estates Plc and Youens Finance Ltd. The Interim Schedule of Conditions from Lister Estates is an independent assessment of the condition of the building at the mid-term of the lease. Lister Estates can still draw a final Schedule of Conditions for comparative reasons in order to avert any conflicts between the property owner and the tenant. However, both Youens Finance Ltd and Pain Estates Plc can avoid considerable costs from seeking legal advice. The tenant must know that the Landlord and Tenant Act 1985 amended as the Housing Act 1996 stipulates what responsibilities of the property owner.
Pain Estates Plc and Youens Finance Ltd can negotiate the dilapidations. Both parties must base their negotiation on statements of facts, consider lease clauses and the agreement. This is where a Schedule of Dilapidations relies on for making claims on decorations, repair, and reinstatement. Therefore, the parties can avoid legal proceedings by relying on “the Property Litigation Association’s ‘Dilapidations Protocol’ and the court’s Civil Procedure Rules” (West and Huntsman, 2001).
If Pain Estates Plc and Youens Finance Ltd shall negotiate, then they must consider the correct liability, reasonable levels of repairs based on the tenant’s covenant, the loss incurred, and the scope of the work Youens Finance Ltd should undertake.
The legal expert must review the head lease document, sub-lease to the Music Recording Studio, terms for alteration, and the Schedules of Condition. The legal expert must also advise on the reasonable claim of Pain Estates Plc based on the property law, construction costs, and case law.
Asbestos
The presence of friable and powdery asbestos in 65 Gresham Street is a serious health risk to tenants as well as the team that will perform the repair. During the 1930s, 1960s and 1970s, asbestos became common for building constructions due to its ability to resist heat, fire, rigidity, and insulation abilities. 65 Gresham Street is a building constructed in 1935. Health experts have noted that even minimal contact with asbestos particles can cause serious health problems like terminal cancer and mesothelioma. The Environmental Protection Act (EPA) 1990 considers any dust that can cause damage to the public.
Currently, the law does not clarify the role of the property owner in cases of asbestos in the premises. However, Pain Estates Plc has the ultimate responsibility for asbestos in 65 Gresham Street. Therefore, Pain Estates Plc will take responsibility for any health risk resulting from exposure to asbestos among all the parties concerned, including neighbors. The sub-tenants occupying the two floors can also get help against Pain Estates Plc from “law center, tenant’s association, local Environmental Health Officer, Citizen’s Advice Bureau, the Health and Safety Executive” (YouClaim, 2011).
However, the sub-tenants and any claimants can only make successful asbestos claims if they suffer injury. For instance, the sub-tenants on the two floors must contract asbestos-related illnesses. Still, it is necessary to investigate the source of asbestos that caused the deaths of Mickey Most and Malcolm Mac Laren.
Housing Minister, Grant Shapps commented that tenants could bear the costs of maintenance and repairs involving internal structures. However, they could receive compensation from the government under the “tenants’ cashback” scheme. The report, ‘As Safe as Houses?’ of 2009 for UCATT noted that property owners should maintain Asbestos Register for all properties (Waldman and Williams, 2009). Therefore, Pain Estates Plc must register the discovered asbestos and its management processes. This can assist tenants to take precautions against asbestos.
Lister Estates and sub-tenants in the two units should rely on Construction (Design & Management) Regulations 2007. This regulation provides guidance on “health and safety, provisions of qualified people to manage asbestos risks, and planning and practical management of risks” (Waldman and Williams, 2009, p. 10). The regulation shall clarify the legal terms for asbestos at the building, exposure levels, time spans, and suitable mechanisms to control friable and powdery asbestos.
The Health and Safety Executives (HSEs) recommend that if the extent of exposure is high or badly damaged, then it is necessary to remove asbestos. In this case, the legal expert must advise Pain Estates Plc to remove the asbestos. However, scientific studies are necessary to establish the degree of risk and damage due to exposure.
The study is necessary to determine whether Youens Finance Ltd and the sub-tenants occupying two units can leave the building for refurbishment and later on, occupy the building under certificate of re-occupation to show that the building is free of asbestos.
Health and Safety matters
Pain Estates Plc, Youens Finance Ltd, and sub-tenants must ensure that the building is safe and free from any hazardous materials to themselves and visitors. Health and safety matters of the building cover many areas. Pain Estates Plc must ensure that 65 Graham Street is safe. The company must ensure that gas and electric gadgets are working well, and follow fire regulations. Pain Estates Plc should inspect the building under the Housing Health and Safety Rating System (HHSRS) in order to establish safety and health standard of the building. Under HHSRS, Pain Estates Plc must take responsibility for the issues at the building. Thus, any repairs must meet high standards set for buildings (Law on the Web, 2012).
Both Youens Finance Ltd and sub-tenants have the responsibility to ensure that the building does not become a health and safety hazard during their lease periods. Tenants must conduct regular maintenance of internal facilities and bear responsibilities for any damages caused during their lease. However, under the FRI basis, Youens Finance Ltd must bear all costs of both internal and external maintenance.
The Occupiers Liability Act 1984 extends the obligation of health and safety matters to all persons occupying the building, including trespassers. In this Act, an occupier of a premise has the duty to do what is reasonable to ensure the safety of the occupants and visitors. The obligations of Youens Finance Ltd and sub-tenants are to make their visitors safe.
In the 65 Graham Street building, safety and health requirements should focus on smoke alarms or carbon dioxide detectors, though these are not statutory requirements. The property owner must also provide an access path to the building under ‘structure and exterior’ requirements in Section 11.
Decking is also a safety and health issue that the landlord must ensure is adequate before leasing the property. However, the tenant usually bears such costs of maintenance based on the agreement.
Air vents are also under obligations of the landlord’s general maintenance requirements based on the structure and exterior set out in Section 11. Under the Landlord and Tenant Act 1985, the landlord must maintain and repair the electricity supply.
Equality Act (and DDA)
The Equality Act 2010 and Disability Discrimination Act 2005 came into place specifically to ensure proper provisions of housing services to persons with disabilities. In DDA 2005, the application areas include Chapter 13 in section 13 under clauses 24(a) to 24(k). Under these conditions, Pain Estates Plc must respond positively to reasonable requests from Youens Finance Ltd to provide a toilet for the disabled users in the common parts for their visitors and other users (Avery, 2010).
However, based on the agreement, Pain Estates Plc can negotiate with Youens Finance Ltd on terms of providing facilities for disabled visitors. Youens Finance Ltd can pay for work and restoration of areas when their lease ends after 20 years. This agreement should bind Youens Finance Ltd and Pain Estates Plc.
However, the current Equality Act 2010 and DDA 2005 require the landlord to consider all reasonable requests for changes in the property in order to improve accessibility and make life easy for people with disabilities. The landlord must accept such reasonable requests. However, Youens Finance Ltd must incur such costs of alterations, which include the creation of a ramp from the street to the entrance hall to enable their clients to gain access to premises and the removal of the fire lobby to the first floor to allow direct access to their reception area from the lifts.
The ultimate beneficiary shall be Pain Estates Plc after the expiry of the lease held by Youens Finance Ltd because such alterations shall increase the accessibility of the building.
The aim of the Equity Act 2010 is to harmonize different provisions of the law for people with disabilities. The law provides an opportunity for tenants to ask for alterations to common parts of the building as needed by tenants. This reduces disadvantages, which result from the use of the building by disabled visitors.
In addition, the Act protects tenants from such discrimination when letting a premise. The DDA 1995 also allows tenants to make reasonable requests to their landlords in order to accommodate disabled customers.
Pain Estates Plc must not unreasonably refuse such alteration requests. Therefore, it must respond within 21 days. The Act also requires the landlord to change management practices in order to assist disabled persons. Thus, disabled visitors are free from harassment and evictions. However, Pain Estates Plc must consult other building occupiers, whom alterations shall affect. A written agreement is mandatory between Pain Estates Plc and Youens Finance Ltd.
Fire Safety Issues
The Fire and Safety Order requires all landlords to perform fire risk assessments for all their commercial buildings and ensure that such buildings have proper and adequate mechanisms and procedures to reduce cases of fire casualties and injuries. Therefore, the law recognizes the property owner as “responsible persons” to conduct this assessment.
Youens Finance Ltd and tenants in the two units must ensure that Pain Estates Plc complies with the Fire and Safety Order by conducting assessment at least once per year or as circumstances require. Pain Estates Plc should note that failure to comply with the Fire Safety and Order requirement is a criminal offense.
With regard to fire safety standards, Pain Estates Plc must install fire alarms, smoke and carbon monoxide detectors, and fire fighting equipment like extinguishers. Pain Estates Plc must provide fire escape routes and plans. The building has multiple occupations. Therefore, Pain Estates Plc must conduct fire safety, risk assessment, and provide extra safety measures in order to comply with the HMO requirements and get a safety license.
Risk assessment processes must identify risks in 65 Graham Street, provide Pain Estates Plc with strategies to mitigate such risks and determine any improvements required in the building such as doors.
Pain Estates Plc must recognize that the Fire and Safety Order has legal significance. For instance, Pain Estates Plc can get guidance from the Local Authority Coordinator of Regulatory Services (LACORS). This guidance has the endorsement of the government and the Chief Fire Officers Association (Total Fire Services Ltd, 2012).
Pain Estates Plc must recognize that fire guidance is not the law and may wish not to comply with it. However, local fire authorities rely on the guidance, and the general conception is that any effort to enforce provisions or standards that do not match provisions under the guidance shall legally fail in the Court.
Thus, it is important for Pain Estates Plc to note that complying with guidance makes it clear that it has complied with the fire safety legal requirements. This is an excellent opportunity for Pain Estates Plc to comply with legal obligations without involving many stakeholders. This guidance provides a chance for self-regulation.
Pain Estates Plc must comply with the Housing Act 2004 that requires all buildings to be safe from fire.
Under the law, Youens Finance Ltd and sub-tenants can complain to Pain Estates Plc n order to ensure compliance with the Fire Safety Order. However, Pain Estates Plc must present “due diligence” evidence in order to prove that it took all the necessary steps to ensure fire safety in the building.
Conclusion
Under dilapidations requirements, there are several statutory requirements the tenant must meet. The tenant must ensure that the building has an access area, meets fire, health and safety standards, and environmental regulations. Youens Finance Ltd must also consider an FRI basis against refurbishment, maintenance, and development. Youens Finance Ltd must also consider sustainability and occupational conditions in order to ensure that the building is an asset to its business. This also applies to sub-agents in the two units.
Youens Finance Ltd has the responsibility to repair and decorate both the exterior and interior of the building based on FRI. Further, the tenant shall also take all responsibilities for all alterations done on the premises. The tenant must perform such repair and maintenance based on the interest of the business.
Both Youens Finance Ltd and sub-tenants must not overlook terms of the lease, maintenance and repair because they can attract unwelcome and expensive dilapidations claims. Youens Finance Ltd can reduce such costs through conducting a Schedule of Condition. This enables the tenant to limit liability at the end of the lease period and note the condition of the property from the outset. Youens Finance Ltd and Pain Estates Plc must append to the lease agreement to make it effective. Youens Finance Ltd should also have schedules of planned repairs and maintenance in order to reduce costs and claims at the end of the lease term.
Pain Estates Plc must understand dilapidations strategies. The company relies on the FRI basis in order to pass all costs to tenants. Pain Estates Plc must protect the building against declines in value during the lease period and reduce costs of dilapidation. The state of the building also influences the asset’s dilapidations strategy.
Covenant assessment shall enable Pain Estates Plc to comprehend, review, and ensure that lease terms with Youens Finance Ltd do not compromise the dilapidations requirements of the building in the future. Therefore, Pain Estates Plc needs a Schedule of conditions in order to allow the company to define the responsibilities of Youens Finance Ltd and reinstate liability. This shall eliminate possible legal proceedings between the parties. The company must also consider a Dilapidations Liability Assessment (DLA) in order to provide a formal Repair Notice to Youens Finance Ltd when the lease expires. The Interim Schedules of Dilapidations from Lister Estates must assist Pain Estates Plc to establish whether Youens Finance Ltd shall honor its responsibilities.
On asbestos, it is the responsibility of Pain Estates Plc to ensure the safe removal of dust from the building. Pain Estates Plc must bear costs for such repair and compensate any successful claimants. At the same time, Pain Estates Plc must ensure that the building meets all requirements by Fire Safety Order. Pain Estates Plc must also recognize that failure to comply with this requirement is a criminal offense. This also applies to health and safety issues.
The Equity Act 2010 and DDA 2005 also require Pain Estates Plc to make reasonable alterations to the facility in order to reduce difficulties for disabled people. Thus, Pain Estates Plc cannot reject such requests. However, Youens Finance Ltd shall bear such costs. Youens Finance Ltd also has the obligation to restore the building to its original status upon the expiry of the lease.
The Building Regulation 2000 also clarifies what types of alterations a building may require. Therefore, it must guide the demolition of the chimney, the removal of the fire lobby to the first floor to allow direct access to the reception area from the lifts and the creation of a ramp from the street to the entrance hall to enable their clients to gain access to the premise. Such alterations also guide “the health and safety of building users, energy conservation, access, and facilities for the disabled, and fire safety including means of warning, escape routes, internal and external fire spread” (Government of Ireland, 2005).
References
Avery, M 2010, The Equality Act 2010: What does it mean for landlords and tenants? Russell-Cooke LLP, London.
Government of Ireland, 2005, Building Regulations 2000: Access for People with Disabilities, The Stationery Office, Dublin.
Law on the Web 2012, Health and Safety for Landlords and Tenants. Web.
Total Fire Services Ltd. 2012, Fire Safety: Fire Safety in Rental Property. Web.
Waldman, L and Williams, H 2009, As Safe as Houses? Dealing with Asbestos in Social Housing: A Report for UCATT, UCATT, London.
West, S and Huntsman, P 2001, West & Smith’s Law of Dilapidations, 11th edn, Estate Gazette, London.
YouClaim 2011, Are you being exposed to asbestos in your home? Web.