Advances in construction techniques and material science have allowed for the design of more colourful and exciting buildings over the last twenty years.

As well as new buildings, old buildings can be given a new lease of life by re-cladding the exterior, using these new materials and techniques.

As a result of the advances, it is noticeable that the types and styles of buildings have evolved significantly during this period.

It was reported last year that brick production is contracting and the importing of specialist curtain walling systems is on the increase.

This is a further indicator that more non-traditional buildings, using modern materials and techniques are currently being constructed.

As a building surveyor, I am often involved in preparing and negotiating Schedules of Dilapidations. In most cases this is a fairly straight-forward process.

However, problems can arise when the subject property is not a ‘traditional’ building but it is subject to the terms and conditions of a ‘traditional’ lease.

Typical repairing, redecorating and yielding up clauses in a traditional lease are as follows:

Repairs

The Tenant shall keep the Property clean and tidy and in good repair and condition.

Decoration

The Tenant shall decorate the Property as often as is reasonably necessary and also in the last three months before the end of the term.

All decoration shall be carried out in a good and proper manner using good quality materials that are appropriate to the Property and the Permitted Use and shall include all appropriate preparatory work.

All decoration carried out in the last three months of the term shall also be carried out to the satisfaction of the Landlord and using materials, designs and colours approved by the Landlord.

Returning the property to the landlord

At the end of the term the Tenant shall return the Property to the Landlord in the repair and condition required by this lease.

Now let us look at a hypothetical, contemporary, non-traditional building externally finished with terracotta tiling and coloured render rainscreen cladding systems with powder coated window frames.

Most terracotta cladding systems are very low-maintenance. The actual terracotta tiles themselves are very durable, but the joints between the tiles can get blocked, as well as the drainage channels behind the tiles.

The manufacturers recommend that the cladding system should be cleaned down after 5 years including brushing out and clearing any blocked drainage channels.

After 10 years it is recommended that the whole of the facade system is washed down using a low pressure water jet.

This washing down should also clear all the drainage channels.

If, at the end of the lease, the building looks fairly clean, any tenant’s surveyor would assume the default position of resisting a full wash down of the cladding system.

This is where the dispute begins.

Some self coloured render cladding systems can perform up to 15 years without the need for recoating, depending on factors such as location, aspect, colour and texture.

Due to these variable criteria, it is not always possible to accurately determine a regular period for planned maintenance.

Different parts of the building may fade/deteriorate at different rates. The tenant’s surveyor and the landlord’s surveyor will have differing opinions on what is considered reasonable.

Also, as the render is a self finished material, then the tenant’s surveyor could try and argue that the render does not meet the conditions covered by the redecoration clauses.

And the dispute goes on…

Let us now consider the matter of powder coated windows.

If the finish on powder coated window system is faded, but otherwise sound, then the tenant’s surveyor may argue that as the window finish is sound then there is no disrepair.

So the repairing covenant is of no benefit.

As the windows arrived on site pre finished, with a 25 warranty which covers the powder coating, then the tenant’s surveyor could again argue that, in spite of the faded finish, the widows do not meet the criteria covered by the redecoration clauses.

...and on.

The sealant material between cladding panels and around windows and doors has a useful life of approximately 15 years as, over time, it oxidises and is hardened by sunlight. It is often argued that if sealant is stuck at the edges and intact, it is doing its job.

....and on.

So, at the end of a long lease, the landlord may get back a building that is in need of external maintenance, in spite of his building surveyor’s best endeavours to enforce the repairing and redecorating clauses within the lease on the outgoing tenant.

Perhaps the landlord should be asking his building surveyor to review the building and its design parameters with a view to advising on any proposed new full repairing and insuring lease.

The surveyor should then consider if he could enforce, or otherwise, the suggested repairing and decorating obligations requiring the tenant to deliver the building up in good order at the end of the lease.

It is a bit of a wild idea, but it might even be worthwhile getting the solicitor to visit the actual property at this point?

If the landlord does not feel that this would be cost effective, he could instruct the solicitor and the surveyor to jointly review the building and the lease.

With the aid of photographs, the surveyor could describe the building and materials used to the solicitor, as well as explaining the maintenance required for the various elements.

With the surveyor’s input, the repairing and decorating covenants could then be drafted by the solicitor to ensure that they cover the necessary repair and redecoration requirements of the building.

Possibly express repairing, cleaning and redecoration covenants, in line with the manufacturer’s recommendations, could be considered for the various elements of the building.

In view of the above, it is felt that landlords should think about the building they are constructing or purchasing and instruct their solicitors and surveyors to ensure that any new full repairing and insuring lease meets the long term requirements for the building and will ensure it is properly maintained during the tenancy.

This is not an appeal to tighten up lease drafting in order to give the landlord a bigger stick with which to beat the tenant, but a request that more consideration be given to drafting property specific leases which will give the tenant clear direction as to the repair and maintenance required and allow the landlord the best possible chance of getting his building returned in a lettable condition.

The term low-maintenance is often read as no-maintenance.

Therefore, the lease drafting process should try and keep pace with the advances in construction technology to allow the tenant to fully understand what the landlord requires during the term and at the end of the lease.

Kevin Dawson is director of The Dawson Consultancy