Interim Dilapidations – What are your options as a landlord? news image

Interim Dilapidations – What are your options as a landlord?

Posted 12 Apr 2022   By Easton Bevins

During the course of a lease, a tenant can fall short of their responsibility to maintain or decorate a property. They may also make alterations to the property without their landlord’s permission.

As a landlord, you may be entitled to make a claim against your tenant based on their failure to look after the property; this is known as an Interim Dilapidations claim.

It’s all in the lease

Your options for enforcing any repair, reinstatement and redecoration requirements will depend on other areas of the lease. Typical options you may have included in your lease include:

Option 1: Forfeiture

A forfeiture clause allows you to serve notice and evict the tenant if they fail to maintain the property correctly. However, it isn’t that simple; most leases are given protection by the Leasehold Property Repairs Act 1938, which gives your tenant an opportunity to appeal the eviction.

They can appeal the eviction by serving a counter-notice. If they do so, you need to prove that one of five specific issues written in the Act are true in order to proceed with the eviction. This process is in place for good reason: a tenant should not be evicted for minor issues, or because the landlord and tenant don’t like each other.

The Leasehold Property Repairs Act 1938 gives protection to a lease of seven years or more, provided that the lease also has at least three years left on the term.

Option 2: Re-entry – known as a ‘Jervis vs. Harris (JvH)’ clause

If your lease contains a JvH clause, you are given a second option if you don’t want to forfeit the lease. The clause allows you to re-enter the property, should any significant repair issues be identified, and undertake any repairs yourself. The costs for these repairs can then be recovered from your tenant as a ‘debt’.

JvH clauses are a popular way of dealing with repair issues without forfeiting the lease and losing rental income. Some landlords also choose to undertake works themselves when forfeiture isn’t an option; as the money becomes a ‘debt’ to recover from the tenant, there is no statutory cap on repair bills as there is in other dilapidations situations (such as at the end of a lease).

As a result, the costs for repair can be large, and the threat of a landlord re-entering the property to undertake works can often convince a tenant to fix the issue beforehand.

But be aware: like forfeiture, it often isn’t that simple. JvH clauses must be very carefully used; should you not follow the correct steps you can be held liable for trespass, or breaches to the ‘quiet enjoyment’ requirements of your lease. It is essential that you seek legal advice if you intend to re-enter the property and undertake repair works.

Option 3: Special Performance

Special performance refers to specific orders given to the tenant by a court. This is usually only awarded if you don’t have either of the first two options available; if you don’t have a forfeiture or JvH clause in the lease, your surveyor may recommend that you gain legal advice and look to be awarded with another solution.

Interim Dilapidations can be a complex issue; although these options are available to you, the first step in any dilapidations is to have a meaningful negotiation between the landlord and tenant and try to achieve a solution. It is essential that the landlord and tenant instruct a surveyor to make sure they gain the correct advice, and to guide them through the negotiation process.

Do you have any questions on dilapidations, or are you looking for an experienced team to assist you? Feel free to get in touch using the contact details above.

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