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Unauthorised alterations to commercial premises can create serious problems for both landlords and tenants, particularly where substantial works have been carried out without the consent required by the lease.
Our specialist property disputes solicitors advise landlords and tenants on disputes involving unauthorised alterations, disputed consent, reinstatement and breaches of lease relating to building works.
We focus on finding a practical solution. Depending on the circumstances, that may mean obtaining retrospective consent, agreeing changes to the works, reinstating the property, negotiating compensation or taking enforcement action.
Taylor Rose combines experienced property litigators with one of the country's largest and most experienced commercial property teams. We can also involve construction specialists where the nature or quality of the works is itself in dispute.
We advise where:
a tenant has carried out alterations without landlord consent;
works go beyond the consent which was originally granted;
a landlord discovers unauthorised works during an inspection;
the parties disagree about whether consent was required;
a landlord refuses consent to proposed alterations;
a tenant considers consent is being unreasonably withheld or delayed;
disputed conditions have been attached to consent;
structural alterations have been made;
walls, partitions, services or access arrangements have been changed;
alterations affect neighbouring units or common parts;
works potentially compromise the building, fire safety or other systems;
a landlord demands reinstatement;
alterations become an issue on assignment, renewal or termination of the lease; or
the parties cannot agree how unauthorised works should be regularised.
We act for commercial landlords, investors, tenants and businesses occupying commercial premises.
The discovery of unauthorised works does not automatically mean that immediate litigation is the best response.
The first questions are what has actually been changed, what the lease permits, whether consent was required and what impact the alterations have on the property.
The landlord may principally want the works removed. Alternatively, the alterations may be acceptable provided they are properly documented, additional information is supplied or appropriate protections are put in place.
We can assess the breach and advise on the most useful remedy rather than escalating a dispute without first establishing what the landlord needs to achieve.
Where alterations have been carried out without the necessary consent, we can help landlords:
establish whether the works breach the lease;
investigate the extent and nature of the alterations;
obtain appropriate surveying or technical evidence;
require information about works already completed;
seek cessation of ongoing unauthorised works;
negotiate retrospective consent where appropriate;
require remedial works or reinstatement;
negotiate compensation or other terms;
protect the position where the property is being sold or refinanced; and
take formal enforcement action where a negotiated solution is not appropriate.
We can also advise on the implications for forfeiture or other lease remedies where the breach is sufficiently serious.
Often, yes.
Where the landlord does not fundamentally object to the works, retrospective consent may provide a sensible solution.
The parties may need to agree what works can remain, whether modifications are required, responsibility for future maintenance and what happens at the end of the lease.
There may also be requirements relating to plans, building information, professional approvals or other documentation.
Our disputes lawyers can negotiate the resolution and our commercial property lawyers can document any retrospective licence or variation required.
This can turn a continuing lease breach into a properly documented property arrangement.
Some works are not acceptable to the landlord.
They may interfere with the structure, adversely affect other occupiers, reduce future letting flexibility or create concerns about the condition or value of the property.
The landlord may therefore seek reinstatement.
Disputes can arise over whether reinstatement is actually required by the lease, what needs to be removed, the standard of reinstatement and when the work must be carried out.
We can work with surveyors and other experts where necessary to establish the physical position while advising on the landlord's contractual rights.
Alterations disputes do not always arise after the work has been completed.
A tenant may need alterations for its business but find that the landlord refuses consent, delays its decision or imposes conditions the tenant considers unacceptable.
The landlord may have legitimate concerns about the proposed works, their effect on the building or the tenant's ability to reinstate them later.
Where the dispute is preventing a commercially important fit-out or refurbishment, we can assess the parties' legal positions and seek to resolve the consent issue quickly.
The objective is normally to establish whether and on what terms the works can proceed rather than litigate unnecessarily about the landlord's decision.
A particularly difficult situation can arise where the landlord agreed to alterations but the completed works differ from the approved plans or specification.
The dispute may then concern how significant those differences are and what should be done about them.
Depending on the circumstances, the solution might involve retrospective approval, modification of particular works or reinstatement.
Where the disagreement is technical, input from a surveyor, architect or other specialist may help narrow the issues and avoid arguing over matters which can be resolved practically.
Disputes can become more serious where works affect structural elements, services, common areas or other occupiers.
The landlord may need to establish quickly whether the works should stop and whether urgent remedial action is required.
These cases can involve both lease obligations and construction issues.
Our property disputes lawyers can work alongside our commercial property and construction specialists and appropriate external experts where necessary.
Historic alterations sometimes become a problem only when the tenant wants to leave.
A proposed assignment may lead to closer scrutiny of the property documents and reveal that alterations were never formally approved.
That can delay landlord consent and potentially put the wider transaction at risk.
Rather than treating the historic breach in isolation, we can seek a solution which allows the assignment to proceed – for example through retrospective consent, additional documentation, agreed remedial work or another negotiated arrangement.
Where there is also a dispute about consent to the assignment, our Assignment and Subletting Dispute Solicitors can deal with the connected issues together.
Disputes may also arise over whether alterations must be removed when the tenancy ends.
The landlord may require reinstatement while the tenant argues that the lease or licence does not require it, or that some alterations should remain.
Where the principal issue becomes the cost of repair and reinstatement at the end of the lease, this may form part of a wider dilapidations claim.
Our Dilapidations Dispute Solicitors advise landlords and tenants on those disputes.
Unauthorised alterations disputes can often be resolved without court proceedings.
Depending on the lease, the works and the objectives of the parties, solutions can include:
retrospective landlord consent;
a licence documenting the existing works;
modification of unacceptable elements;
additional protective conditions;
remedial work;
partial or complete reinstatement;
compensation;
agreement about reinstatement at the end of the lease;
a lease variation; or
an overall settlement where the tenant is also leaving the property.
The appropriate solution should reflect the actual effect of the alterations rather than simply the fact that a technical breach has occurred.
Negotiation will not always be sufficient.
A landlord may face continuing works which risk damaging the building or materially breach the lease. A tenant may face an unreasonable position which prevents important works from proceeding.
Formal correspondence, an injunction or other court action may need to be considered depending on the circumstances.
Where forfeiture is threatened because of an alleged breach, our Commercial Forfeiture and Possession Solicitors can advise on the additional risks and remedies involved.
The significance of an alterations dispute can vary enormously.
A disagreement about relatively minor internal works should not be approached in the same way as unauthorised structural alterations affecting a valuable commercial building.
We can initially review the lease, relevant licences, plans and correspondence and identify the strength of the legal position and realistic solutions.
A solicitor's intervention may then be sufficient to agree retrospective consent or reinstatement without substantial litigation costs.
More extensive action can be considered separately where the value, urgency or risk justifies it.
Commercial alterations disputes frequently require more than litigation expertise.
The underlying lease needs to be understood, the physical works may need technical assessment and the eventual solution often needs to be documented properly.
Our specialist property disputes lawyers are backed by one of the country's largest and most experienced commercial property teams. We can also work with construction specialists and surveyors where the nature or effect of the works is disputed.
That allows us to deal with the whole problem – establishing whether there has been a breach, negotiating the practical solution and documenting retrospective consent, reinstatement arrangements or other agreed changes.
Our focus is on protecting the property and resolving the breach, rather than allowing an alterations issue to become a larger and more expensive landlord and tenant dispute.
Contact our specialist property disputes team to discuss the lease, the works and the practical outcome you need.
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Acting Head of Property Disputes
Alex has a vast amount of experience in various complex property disputes and always strives to work with his clients to achieve the most cost effective and efficient outcome.
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