Dilapidations Disputes: When You Need an Expert Witness Surveyor

A dilapidations expert witness is a chartered surveyor instructed to give independent, court-compliant evidence on the condition of leased premises, what the lease actually required, and what it would cost to put right. Most dilapidations claims settle between the parties' surveyors. When they do not, both landlord and tenant need an expert whose overriding duty is to the court rather than to the person paying the fee. This guide explains when a dilapidations dispute crosses that line, what the expert is asked to do, how the claim is capped by section 18 of the Landlord and Tenant Act 1927, and what the work typically costs.

When does a dilapidations claim need an expert witness?

The Pre-Action Protocol for Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy, usually called the Dilapidations Protocol, is built to keep these claims out of court. The landlord's surveyor prepares a schedule of dilapidations and a quantified demand, generally within 56 days of the lease ending; the tenant's surveyor responds within a further 56 days; the parties then meet, exchange evidence and try to settle. Each surveyor is also asked to endorse their schedule or response, confirming that the works listed are genuinely required by the lease and the costs claimed are reasonable.

An expert witness surveyor becomes necessary when that process fails and proceedings are issued or seriously threatened. Typical triggers include:

• A large gap in quantum — the landlord's schedule runs to hundreds of thousands of pounds and the tenant's response values the breaches at a fraction of that.
• Disagreement about the standard of repair — whether the lease required the tenant to hand back the premises in the condition set by a schedule of condition, or in a far better state than they were ever in.
• A section 18 argument — the tenant contends the landlord has suffered little or no loss because the premises were always going to be refurbished, redeveloped or re-let on different terms.
• Supersession — works the landlord actually carried out after lease expiry made some of the claimed repairs redundant.
• Break clause conditions — the landlord says the break was invalid because repairing obligations were not met, so the lease (and rent) continued.

Once a claim is heading to the County Court or the Technology and Construction Court, expert evidence is admitted only with the court's permission under CPR 35.4, and the expert's report must comply with CPR Part 35 and Practice Direction 35.

What the dilapidations expert witness actually assesses

The expert answers the questions the court needs answered, not one side's case. In a dilapidations dispute those questions fall into three groups.

Breach. Reading the lease, any licences for alterations and any schedule of condition, the expert identifies which items in the schedule of dilapidations were genuine breaches of the tenant's repairing, decorating, reinstatement and yielding-up covenants at the termination date. Items that were the landlord's responsibility, that fall outside the demise, or that reflect fair wear and tear where the lease excludes it are stripped out.

Remedy and cost. For each surviving breach, the expert states the reasonable remedial work and its cost at the date of termination, with an allowance for preliminaries, professional fees and VAT where recoverable. Costings are expected to be evidenced — measured quantities, contractor quotations or published pricing — and where the landlord has already done the work, the actual cost is usually the best evidence.

Loss. The cost of repair is not the measure of damages; it is the starting point, subject to the statutory cap discussed below. The expert building surveyor's evidence on breach and cost therefore often has to sit alongside a valuer's evidence on the effect on the property's value.

Reports are prepared in the format required by Practice Direction 35, including the range of opinion where one exists and the expert's statement of truth. The structure of a property expert witness report is covered in more detail in a separate guide.

Section 18 of the Landlord and Tenant Act 1927: the cap on damages

Section 18(1) contains two limbs that shape almost every contested dilapidations claim. The first limb caps damages for breach of a repairing covenant at the amount by which the value of the landlord's reversion is diminished by the disrepair. If the premises in their actual state are worth £150,000 less than they would be in repair, the landlord cannot recover more than £150,000 however much the schedule totals. The second limb bars any recovery for repairs where the landlord intended, at or shortly after the end of the term, to demolish the premises or carry out structural alterations that would make the repairs valueless.

In practice this means a contested claim frequently needs two experts in different disciplines: a building surveyor on breach and cost, and a RICS Registered Valuer on diminution in value. The Dilapidations Protocol encourages the landlord to produce a diminution valuation before proceedings where the tenant raises section 18, and the RICS dilapidations guidance for England and Wales sets out how members should approach both the schedule and the valuation.

Single joint expert or one expert per side?

Courts limit expert evidence to what is proportionate. In lower-value claims the court may direct a single joint expert instructed by both parties, which keeps cost down but leaves neither side with an expert of its own. In higher-value or more technical disputes each party is usually permitted its own building surveyor and, where section 18 is live, its own valuer. The experts are then normally directed to meet, discuss the schedule item by item and produce a joint statement recording what is agreed and what is not, which often narrows a long schedule to a handful of points that need a judge.

How much does a dilapidations expert witness cost?

Fees depend on the size of the premises, the length of the schedule and how far the case goes. The panel's experts typically charge £150–£300 per hour, and a Part 35 report for a straightforward matter — a single commercial unit with a manageable schedule — usually falls in the £5,000–£15,000 range. Multi-let buildings, industrial premises with plant and services, or claims combined with break-clause or supersession arguments can run to £20,000–£50,000 or more once expert discussions, joint statements and answers to written questions are included. Court attendance, if the case reaches trial, is normally charged at £1,000–£2,000 per day. A preliminary review of the schedule is often a sensible first step before committing to a full report. The cost of expert witness surveyors more generally is covered in a separate guide.

Costs usually follow the event, so the losing party pays a proportion of the winner's reasonable expert fees — a strong reason to obtain a realistic independent view early.

Instructing a dilapidations expert witness through Survey Merchant

Survey Merchant provides RICS chartered building surveyors and Registered Valuers as expert witnesses in dilapidations disputes across England and Wales, acting for landlords, tenants and solicitors, and accepting single joint expert appointments. The panel's experts have hands-on experience of schedules of dilapidations and of the section 18 valuation evidence that decides many contested claims. Survey Merchant matches the discipline to the dispute — building surveying, valuation or both — and quotes fixed fees for CPR Part 35 reports, expert discussions and court attendance. If the dispute has not yet reached the point of proceedings, the panel can also arrange dilapidations surveys and negotiation or a schedule of condition at lease commencement to limit future exposure. To discuss a claim, see the dilapidations expert witness service, call 0204 579 8270 or contact Survey Merchant with the schedule and lease to hand.