November 2013

A Word from the Editor
 
In this issue of our newsletter we are privileged and grateful to have a guest contributor, Elizabeth Repper, who is a barrister and mediator at Keating Chambers and has agreed to give us the low down on using mediation to resolve a dispute between neighbours.
 

 

Breaking up is hard to do.....

 

In Set Square we have hard-earned experience in assisting Tenants to bring leases to an end through the operation of break options. Depending on the requirements of the break option, this always requires careful attention to detail, and even if the Tenant does comply with the conditions, the post-break issues can be equally challenging.

 

Break clauses often require the rent to have been paid - not unreasonably - and if the rent is normally paid quarterly or otherwise in advance, this will necessitate the full payment of rent for the quarter in which the break falls. Very often there is no mechanism for the recovery of any overpayment of rent for the portion after the break date, and is kept by the Landlord. This has in the past been accepted by Tenants as a fee for operating the break option.

 

At least one Set Square client who pays rent annually in advance has had a large part of the annual rent kept by the Landlord after the operation of the break clause just part way into that year.

 

A High Court case back in May involving Marks & Spencer challenges this principle. M & S paid not only a full quarter's rent, but also a break fee of one year's rent as stipulated in the lease. M & S then went on to claw back the overpaid rent in the High Court for the period after the termination date, and succeeded in so doing. The basis for this decision was that the Landlord had already been compensated for the operation of the break, and it was unfair to award him a further windfall in the form of the full quarter's rent.

Whilst this has been challenged in the Court of Appeal, this case is significant as it does go some way to reverse the recent plethora of case law which has been widely seen as being very pro-Landlord. We must wait to see if the Courts stick to their original position, and of course this may only affect those leases where there is a specific break fee to recompense the Landlord.

 

Written by Paul French

paul.french@setsquaresurveyors.co.uk

 

Mediation of Neighbour Disputes

by Elizabeth Repper of Keating Chambers

 

Many neighbour disputes begin when extensions are built, boundaries change, trees grow or start to overhang or property is damaged, for example by water ingress from an adjoining property.

 

Using litigation to resolve a neighbour dispute can prove costly. By way of example, Mummery LJ warned in Cameron v Boggiano, a protracted neighbour dispute about the ownership of a thin strip of land, that:

 

"...the only certainty in this kind of case is that the financial outlay is almost always more than the disputed property is worth."

 

In Faidi v Elliot Corporation neighbours fell into dispute about timber flooring laid in one flat which was said to cause noise to be heard in a neighbouring flat that would not be heard if underlay and carpet were installed instead. In total, the parties spent �140,134 on legal costs to the appeal. All three Lord Justices commended mediation as a form of dispute resolution for neighbour disputes.

 

Having a neighbour dispute may also have consequences down the line. Indeed in Cameron Mummery LJ said this:

 

"The lawsuit could have unwanted long-term consequences that a sensible compromise might have avoided. One side 'wins' at trial, and/or on appeal, but, in the long run, both sides lose if, for instance, litigation blight has damaged the prospects of selling up and moving elsewhere."

 

As to the timing of a mediation of a neighbour dispute, Mummery LJ said this in Bradford v James:

 

"An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue."

 

Further, Jackson LJ said in Faidi "...before embarking upon full blooded adversarial litigation parties should first explore the possibility of settlement. In neighbour disputes of the kind now before the court...if negotiation fails, mediation is the obvious and constructive way forward."

 

Mediation may also allow parties to agree solutions which are not "all or nothing". For example, in Faidi Jackson LJ said that a moderate degree of carpeting might have reduced noise penetrating into the neighbouring flat, but still enabled enjoyment of the timber floor and that this was:

 

"...precisely the sort of outcome which a skilled mediator could achieve, but which the court will not impose."

 

The Courts have also spoken about the potential affect of a neighbour dispute on individuals' lives. In Cameron Mummery LJ said this:

 

"Suing and being sued by neighbours is a stressful and unpleasant experience."

 

Further, Ward LJ said this in Oliver v Symons:

 

"All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come."

 

As to any feeling that a neighbour dispute is intractable and could only ever be resolved by a Court, the following words of Ward LJ in Faidi are worth noting:

 

"Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing."

 

Finally, as to the practicalities of taking a neighbour dispute to mediation, mention must be made of The Jackson ADR Handbook, published April 2013, which contains chapters on preparing for mediation and the mediation process. The necessity for parties in dispute to consult this book cannot be underestimated (See the Court of Appeal decision in PGF II SA v. OMFS Company 1 Limited [2013] EWCA Civ 1288 referring to the ADR Handbook).

 

Elizabeth Repper is a Barrister and Accredited Mediator at Keating Chambers, London. For further information, please contact Elizabeth directly at erepper@keatingchambers.com

 

 

The Party Wall Act - Why Bother?

If you are thinking about carrying out any building works you may have heard about the Party Wall etc Act 1996 (the Act) which, broadly speaking, states that you must inform the Adjoining Owners (your neighbours) by way of serving a formal notice if you intend to do any work which is within a certain distance of their building or to the wall separating the two buildings - a party wall - or you intend to build along the boundary. As the Building Owner (the person carrying out the work), you would be responsible for both your surveyor's and, should your neighbour choose to appoint surveyors, their reasonable costs. This can put a lot of people off serving notice and instead they chance going ahead with the works and hope that their neighbour doesn't do anything about it.

If however, your neighbour is aware of their rights under The Act, they could apply to the courts for an interim injunction, the costs of which you may be required to meet, against the works stopping you in your tracks and causing far more costly delays than if you had just followed the procedures of the Act in the first place. Not only this, complying with the legislation can provide benefits in other ways; it can protect you against possible spurious claims for damage from your neighbours because when appointed, surveyor(s) will usually inspect the neighbouring property and prepare a Schedule of Condition so that you and your neighbour can accurately check if any damage caused by the works is evident. It is worth remembering that a claim for damages can be submitted up to 6 years after discovery of the defect.  

Also, having an Award in place gives you the right to access your neighbours land to carry out certain works, without it you will probably be trespassing. But most importantly when considering whether or not to serve a Party Wall notice let's not forget it is the law!

If you need more information you can download this booklet from the Government website which explains The Act or you could of course contact us

Written by Samantha Joyce

samantha.joyce@setsquaresurveyors.co.uk

 

On the APC Road

In the past month I have been involved in a dilapidations project in Salford which has taught me a vast amount in terms of project management, contract administration, mechanical and electrical matters as well as the physical pathology of the building materials and processes required to make them work.

 

Most importantly, I learnt that the way in which a dilapidations job is run is different when compared to other forms of building work of a similar nature; there are strict deadlines, tight budget restrictions and a greater requirement to keep in agreement with landlords and their surveyors.

Away from dilapidations, I have been involved in designing a Disabled WC incorporating a Wet Room for a nursing home in London. Although sounding simple, working to the limits of Building Regulations can alter the layout considerably. Understanding this and meeting the client's requirements and expectations has been a challenge that I have accepted and completed now the design has been submitted, approved and the work is anticipated to begin in the coming weeks. I take great pride in the fact that my hard work and design will be making the life of another person a little more comfortable.

Written by Laurence Stech

laurence.stech@setsquaresurveyors.co.uk

 

 

CDM in Context

A common misconception relating to HSE notification, is that if a client arranges for work on the same site to be undertaken by separate contractors at the same time and each contract by itself would not involve more than 30 days or 500 person days, then there would not be a requirement to notify the HSE or appoint a CDM Coordinator. This is not necessarily the case. The regulations refer to "projects" as opposed to "contracts" so Clients should step back and consider the purpose of the regulations - to integrate health & safety into the management of a project and to encourage those involved to work together - and to look at the project as a whole as opposed to separate contracts.

In a project we are involved in as CDM Coordinator the client is refurbishing a dilapidated industrial warehouse, upgrading the electrical supply and installing waste recycling plant. These are three distinct phases of a single project. The first phase, the refurbishment works, is notifiable to the HSE under the CDM regulations because the work will take longer than 30 days.   Straight forward so far. The second phase, the upgrade of the power supplies is also notifiable for the same reason and third phase is borderline in that the installation, excluding delivery is expected to take a day or two under 30 days.

Initially, only the first two phases were considered to require notification, albeit separately because once the refurbishment works are complete, there will be a handover of the site to the electrical contractor. However, after consultation with the client, and the design team, it was decided that the refurbishment contractor would retain the role of Principle Contractor to cover all three phases. Similarly, our role as CDM Coordinator is also extended.

Whilst this means that every phase of the project becomes notifiable as a whole this approach provides several benefits. Primarily, it provides continuity of the management of health and safety during the whole of project period. It also provides a cost benefit to the client because there will be significantly less bureaucracy. A single Construction Phase Plan is required - although this will be amended to include management arrangements to be undertaken by the both the electrical and plant installation contractors as information becomes available - as opposed to three separate ones and multiple HSE notifications will not be required. In addition, only one contractor will allocate costs to undertaking the Principle Contractor role.

The approach being taken on the project described is appropriate in the circumstances and this was confirmed by a HSE inspector who undertook an unannounced site visit following the submission of the F10 notification.

Written by Andrew Murtough

andrew.murtough@setsquaresurveyors.co.uk

  

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