Comment on RICS Dilapidations Guidance Note

as Précised by Vivien King

(a consultant to Bond Pearce LLP)


We have a copy of Vivien King's comment on the RICS Dilapidations Guidance Note which you can download from here:

Vivien King is available for up to date advice on and training at

The RICS Dilapidations Guidance Note by Vivien King

The RICS Dilapidations Guidance Note by Vivien King

Vivien King's comment on the RICS Dilapidations Guidance Note really is excellent and gives a great review of the RICS Dilapidations Guidance Note.

Section 1 is the introduction.

In Section 2 Vivien King clarifies such issues as the Civil Procedures Rule (the CPR), which came into effect from April 1999, and, as we are all now aware, explains that no longer can expert witnesses' simply line up behind their clients. Indeed, it explains how this is actively discouraged and how the CPR wants these disputes to be agreed out of court, and should they get to court, how the judge will not look favourably on any parties that have not followed the CPR.

Vivien King also looks at the pre action protocol. The Property Litigation Association's Law Reform Committee have drafted one that has been adopted by the RICS and this explains how it encourages the exchange of information, i.e. electronically, and also set up reasonable time scales (not more than two months seems to be the preferred time scale).

It also looks at the Statements of Truth that the Surveyors will have to abide by and also identifies that the penalty for signing the declaration, knowing that the facts are untrue, is a fine or imprisonment. The wording, and I quote, is: I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and the opinions I have expressed represent my true and complete professional opinion'.

Free phone 0800 298 5424


Interestingly Vivien King identifies that costs will not necessarily follow the event and advise that the Court of Appeal's decision in Johnsey Estates 1990 Limited v Secretary of State for the Environment, Transport and Regions 2001, where one party may have won the litigation, however one party has also exaggerated, the court has discretion to award appropriately.

It also has a great quote: I can think of no other area of property law where exaggeration and / or understatement have been more used as tactics than relating to dilapidations'.

It also interestingly comments about building surveyors acting for landlords drawing up Schedules of Wants of Repair for the premises with no reference to the lease. Surely this is still not carried out and, equally, the opposite situation where the building surveyor is acting for the tenant and simply denying any disrepair.

Section 3 identifies the different roles of the surveyors involved in a dilapidations case:

  the expert witness;

  the expert;

  the adviser;

  the negotiator.

Section 4 is about collecting information, which is the lease and other legal documents and it also, interestingly, notes that any photos taken at the time or a schedule of repair, if applicable, and also asks the landlord's client directly what there intentions are in relation to the building.

Section 4 also looks at the lease and touches on the code of practice for commercial leases and just comments that any repair costs included in the service charges should be appropriate to the length of term and the condition and age of the property at the start of the lease.

In summary Vivien King says to make sure that you are looking at the right part of the property, the repairing covenant, and looks at the word keep', a word that we are particularly keen on, due to the implications it has, meaning that you can be immediately required to put the premises in good repair. The case in question is Elite Investments Limited v T I Bainbridge Silencers Limited 1986.

Vivien King also goes on to advise that a tenant is not obliged to create something which was not there; although the line between a repair' and an improvement' can be a thin one. It then says that three tests need to be applied from the McDougall & Anor v Easington District Council:

  Whether the alterations were needed to the whole or part of the structure.

  Whether the effect of the works produced a wholly different building to that original demised.

  The cost and effect of the life span of the building.

There is also an interesting bit on beyond repair'.

The remainder looks at the words keep' and yield up'.

Section 5 is about preparing the schedule and the claim and Vivien King emphasises that the schedule should be prepared in a format which is easily editable (yes, by both parties) and also advises that the landlord's surveyor should be expected to advise upon the quantum of the claim. In addition to the cost of the works listed in the schedule the surveyor should give thought as to whether or not the claim should also include other elements such as VAT.

Section 6 covers statutory requirements, Law of Property Act 1925, section 146 (often known as a Section 146 Notice). This section identifies the right to re-enter or forfeiture is not enforceable until a Section 146 Notice is served correctly. It also outlines that a Section 146 Notice should:

  Specify the particular breach complained of.

  If the breach is capable of remedy, require the lessee to remedy the breach.

  Require the lessee to make compensation in money for the breach.

It also looks at the Leasehold Property (Repairs) Act 1938, Section 1, which entitles the Lessor to serve a counter notice within 28 days. Also the Landlord and Tenant Act 1927, Section 18 Notice is discussed, which gives rise to a Section 18 valuation; the leading case on this is Crown Estate Commissioners v Town Investments Limited 1992, which placed a ceiling on the amount recoverable as damages, which is known as a diminution in the landlord's reversionary interest due to the breach.

Section 7 looks at landlord's remedies during the term of the lease and forfeiture together with a waiver of the right to forfeit, and relief from forfeiture and proposed changes to the law.

Vivien King also covers Damages and mandatory injunction in this section.

Section 8 is about settling the action and identifies that most disputes are settled outside court.

Section 9 is venues for dispute, by way of arbitration or independent expert, or surveyor.


We believe that Vivien King's notes accompanied a talk that was carried out.

More information about Vivien King can be found at:

For Legal Dilapidation advice contact Vivien King. For Surveying and negotiation advice contact on 0800 298 54 24.


building engineers

Home Buyers Reports Property Surveys - why we're the best. Engineers Reports
© Copyright

1stassociated-logo-for-footer IVSA-badge IVSA-putting-client-first call-us-for-footer

We have thousands of free property articles to help you - or call us freephone on 0800 298 5424

We have been working in the property industry for many years and have been
providing free property articles for over ten years. All for free and to help you with buying your next property.

House and Home Surveys and Useful Information

All you need to know about Building Surveys

Building Control, what do they do?

Designers and Architects will they save me money or will they cost me money

Enviroment, Your Building and Garden Gnomes

Estate Agents help sell houses and work for the vendors

Have a Structural Survey to protect you against structural problems

Home improvements, builder problems and ideas for you on how to solve them

How a Surveyor values a property, Chartered Surveyors and Regulated Valuers

How Chartered Engineers and Building Engineers can help you

Listed Buildings and Conservation Areas

NHBC National House Building Council

Structural Surveys and How We Can Help You

Traditional and Non-Traditional Houses and Mortgage Problems

Valuations and how much is the building worth?

Whats the difference between a Chartered Building Surveyor, Chartered Surveyor and an Independent Surveyor

Useful property problem articles by Chartered Surveyors explaining building issues to avoid

External - Helpful information on building problems on the outside of the property

Chimney issues and problems

Cracking and Movement Problems and Surveying Solutions

Flat Roof Problems, how we can solve them

Foundations and Structures and Settlement and Subsidence and Underpinning

Pitched Roofs Problems and Solutions

Roof Problems

Wall Problems

Windows and Doors and Fascias and Soffits and Wet Rot and Dry Rot and other problems

Internal - House problems we have investigated inside

All you ever need to know about floors

Asbestos in your home, what you need to know

Ceiling Cracks and Structural Problems

Condensation, Damp and Black Mould Problems

Cracking and Movement Problems and Surveying Solutions

Windows and Doors and Fascias and Soffits and Wet Rot and Dry Rot and other problems

Woodworm is it a problem or not? Is it active or not?

Services - Building help and advice on costly services

Drainage, what's underground can affect what's above ground

Heating; I just can't get my house warm enough or alternatively I just can't get my house cool enough

You can't mess around with the electric, you need an expert


Commercial Property Services

Building Terms Explained and Directories

Commercial Property Surveys

Commercial Structural Surveys

Leisure Facilites

Offices Large and Small

Shops and Retail

Warehouse and Industrial Buildings

Dilapidations Help and Advice What is a Dilapidations Notice?

A Beginner's Guide to Dilaps

Damp Mould and Condensation

Dampness Rising Damp Mould Black Mould Condensation

Dilapidations and Negotiations

Dilapidations Claim by a Landlord

Energy Saving what can I do?

Finance what is a Financial Adviser (We are not Financial Advisors)

Fire Risk and Help

Health and Safety Risks

Insurance how do I get the correct property insurance?

Landlords Surveying Advice

Property Investment how can I invest in property?

Property TV Reviews by an Independent Surveyor

Schedules of Condition Leasing a Commercial Property

Scotts Schedule and Section 18 Valuation

Tenants Surveying Advice

Weather how does weather affect my property?



Snow and Ice

Strong Winds

Reviews from clients on Commercial Building Surveys

Churches and Charities, helpful reviews from our clients

Industrial Buildings and Warehouses and what our clients say about us

Offices Large and Small, reviews and feedback from our clients

Pubs, Restaurants, Hotels and other Leisure facilities we have surveyed over the years

Shops and Retail, helpful reviews from our clients


First Time Buyers

Buying a Leasehold or Shared Freehold Home

Buying and Selling Houses for the experienced house and home purchaser

First Time Buyers how do I go about buying my first house and home?

Improve your property knowledge with our presentations on house, homes and commercial property

Building Surveys

Building Surveying Useful Information


Dilapidations Presentations in Detail

Final Year Building Surveying Exams for University Students or those that would like to know more

How old is your Building? Which era was it built in?

Party Walls

Surveyors and Design Tools

Disputes and Party Walls

Boundary Disputes

Building and Property Disputes

Party Wall Book Reviews

Party Walls Your Rights and Responsibilities

1stAssociated Surveyors Review for Structural Surveys and Building Surveys

Building Surveys, reviews and feedback from satisfied customers

Buy to let property clients, what they say about our structural surveys

Buying at auction, review of the survey

Buying bungalows and retirement properties and how our surveyors can help

Both at work / busy couples, how we can help and some 1stAssociated client reviews

Families with a young person flying the nest, reviews and feedback

First Time Buyers, what they say about us

Listed buildings, structural surveys

Older buildings, a review of buying an older house

Families with children looking for a new home, feedback and reviews

Buying a Non-Traditional Property

Residential Surveys

House and Home Surveys

Commercial Building Surveys

Commercial Surveys

1st Associated Surveyors Are Also Available in the Following Areas:

East Anglia and East

South and South East

West Country and South West


North and North East



London Markets

London Parks



Areas of Britain

1stAssociated Independent Expert Property Surveyors

Specialists in Home Buyers Reports, Building Surveys and Structural Surveys and Schedules of Condition

All Surveyors are Royal Institution of Chartered Surveyors qualified and RICS regulated

and are Members of the Independent Surveyors and Valuers Association

Putting the Client First

We do not accept service of documents by email or fax