As a litigation department, we have dealt with many building disrepair dispute cases across the years. Often, there are questions and confusions raised by clients on building disrepair reports and expert evidence under part 35 Civil Procedure Rules (CPR).
Is this the same as a home survey? And how does it assist the case? We seek to clarify some of the questions in the article here.
Part 35 CPR rules
From experience, in most disrepair cases, liability relies on Expert Evidence. The CPR pre-action protocol encourages parties to agree on a single joint expert. If this is not feasible, they may instruct separate experts who then collaborate via a joint Scott Schedule.
Part 35 of the Civil Procedure Rules governs expert reports, including survey reports for disrepair, outlining the duty to the court and the required content of such reports. Notably, it is the duty of experts to help the court on matters within their expertise, and this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid (CPR35.3).
Expert Witness Survey
In tenant and landlord disputes, when a landlord receives a disrepair claim, it is usually good practice for them to instruct a surveyor to carry out an inspection. This is a detailed inspection conducted by a qualified surveyor or building specialist to identify and record the condition of a property where there are concerned about disrepair, maintenance, and/or structural issues.
The expert should then produce a report which complies with part 35. This includes preparing a pre-action protocol compliant schedule of works (or a Scott Schedule). The schedule provides proposed start and completion dates.
These surveys are especially important in disputes where tenants claim that reported issues have not been properly resolved. They can also assist landlords in verifying that their properties meet quality standards.
The key points the survey should include are:
- Every defect alleged is thoroughly covered in the report
- Specify whether the alleged item falls within the landlord’s repair obligations
If a repair is necessary, the report should confirm whether it falls under the landlord’s responsibilities as outlined in the tenancy agreement, Section 9, 10, or 11 of the Landlord and Tenant Act 1989, or Section 4 of the Defective Premises Act 1972.
- Identify the cause of defect
This is crucial. The report should explain why the repair is needed. For example, if dampness is involved, the cause must be identified. It is also important to note if the defect results from tenant damage, as this could potentially be recharged to the tenant.
- Include additional items for necessary repairs
After addressing the repairs alleged, a comprehensive property inspection should be conducted to identify any other necessary repairs. These should be documented separately from the defects outlined in the claim.
- Include estimated costs for Scott Schedule or Schedule of Works
It should include the estimated costs of each repair. Providing these figures is important for all parties to understand the value of the repairs and to facilitate the resolution of the claim.
Finally, we remind parties that the expert witness evidence shall comply with the required formality under Part 35 (CPR 35.10) and that should the party wish to call the expert to give witness, they must first apply for permission of the court.
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