Posted: Wednesday 11 January 2012
What sort of bad weather is good for your business?
By Hugh Angus
Whenever there is heavy rain and high winds, particularly from the south west, my phone starts to ring, as water comes into my clients’ tall buildings, particularly multi-occupancy ones with a service charge. Clients want to know whether fixing the leak is the landlord’s or the tenant’s responsibility, who bears the initial cost and if the cost can be recovered from someone else (including potential claims under collateral warranties). I then have to remember or look up (easy with the wonders of electronic filing) the original lease documentation or construction package from the lease or assignation drafted a few years ago.
Now, given that my clients are quite capable of reading a lease or a lease report themselves why do the calls come to me rather than to the other party to the lease or the contractor who will actually fix the leak? While there might be clients who pay for legal advice just for the fun of it, this has never been my experience. I think it is because we are only asked the difficult questions relating to the stress points in a lease, just as only rain in a high wind will test how waterproof a new building is.
Some points from my own experience are:-
- Whether a particular piece of detailing is a part of the common parts or the tenant’s premises. This often comes from the landlord’s style lease. One of the reasons leases have evolved and become longer since the service charge lease was introduced in the mid-1970s is that issues and ambiguities have been identified. This is one of the difficulties with an investor or tenant acquiring an interest in an older style lease.
- The party’s negotiating strength when the lease was entered into is important. In a market that is against them both landlords and tenants will agree to terms they would rather not.
- Time pressure on the construction period seems to have a bearing. This is only my perspective as a lawyer and I would be interested to hear from construction professionals on this, but when there is a tighter construction timetable with a real commercial pressure to complete on a particular date then my impression is that there is more chance of a defect. Of course not all defects are material or cannot be fixed easily if the contractor or designer is still around, but I do seem to be asked about more leaks following that sort of situation.
Finally as these queries increase over the years am I picking up market share, are my clients involved in poorer buildings, do modern buildings leak more or is it getting wetter and windier? Certainly the Forth Road Bridge seems to have been closed far more often in the last five years then I remember.
Wind by itself seems to create less work for me, though more damage to my own house and garden!
