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Legal A-Z: "D" is for Dilapidations

18 February 2013
My lease ended six months ago. About two months ago, the landlord served a terminal schedule of dilapidations. Am I out of time to respond?

Not as such. You may be thinking of the Dilapidations Protocol which formally became part of the Civil Procedure Rules on 1 January 2012. It is officially titled the "Pre-action Protocol for Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (the "Dilapidations Protocol")" – snappy, right?

The Dilapidations Protocol provides that a landlord should serve its schedule of dilapidations within a reasonable time after the end of a tenancy. What is a "reasonable time" will vary from case to case, but will generally be within 56 days. As the tenant, you should respond to the schedule within a “reasonable time”, which will also generally be within 56 days of receipt.

You can still respond after the suggested period and doing so would not prevent you from defending litigation if the landlord issued proceedings. The Dilapidations Protocol makes clear that the Court will be concerned about compliance with the Protocol in substance, not with minor or technical shortcomings.  Whilst the Court has the power to impose sanctions for non-compliance, such as a costs award against the non-compliant party, the landlord would have to show that it was somehow prejudiced by your delay in responding, to persuade the Court to impose a sanction.

Consider any subsequent correspondence you have had with the landlord. Has the landlord chased for a response? If not, it may have little to complain about, particularly as it served the schedule outside of the "reasonable period" prescribed by the Dilapidations Protocol.  It would be sensible to respond substantively as soon as possible. There is nothing to stop you from doing so and you should insist that the landlord engages with your response.

(An earlier version of this article was previously published in hard copy in RICS Property Journal, formerly known as the Commercial Property Journal).

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