Five stage approach to liability:
1. What is the physical subject matter of the covenant as expressed in the documents
2. Is the subject matter in a damaged or deteriorated condition
3. Is the nature of the damage or deterioration such as to bring the condition of the subject matter below the standard contemplated by the covenant
4. What work is required in order to put the subject matter into the contemplated condition
5. Is that work of such a nature that the parties did not contemplate that it would be a liability of the covenanting party.
The Landlords evidence in support, should include consideration for;
1. Service of the Schedule of Dilapidations and validity
2. Existence of breaches of covenant
3. Written evidence developed with care
The Landlord should evidence the breach through:
a) The Lease and engrossed documents forming the basis of the claim, including licenses for alterations and schedule of condition, planning and building consents etc
b) Landlord or their successors in title needs to be evidenced
c) Tenant or their successors in title needs to be evidenced
d) Service of S146 notice where required, drafted and served in accordance with procedure
e) The existence of breaches of the covenant to repair, redecorate or reinstate the premises evidenced.
f) Expert Witnesses - such as quantity surveyors for the costings and valuer for the property valuation
g) preparation of the same into a Scott Schedule.
MGRA are working hard for both Landlord and Tenant to ensure that liability is defined and the Premises surveyed in consideration of the Lease covenants in order to ensure an evidenced based approach to the claim is adopted.