The multi-let property
Multi-let properties can give rise to duties being imposed on both Landlords and Tenants.
As a rule of thumb a tenant will have duties under the Act ("the DDA") in relation to the areas within its demise. If a Tenant, its staff and its customers need to use common areas and features to get to and use its premises (e.g. walkways, escalators, lifts, parking areas in shopping centres or staircases, lifts and toilet facilities in office blocks) the Landlord will have duties under the DDA in relation to those areas that are common.
In office buildings the duty under the DDA will hinge on whether tenants in the building are providing services to the visiting public or employing disabled staff.
Commentators predict that the division of duties in multi-let buildings could give rise to litigation.
Service charges
The Landlord should consider carefully the scope of works done to comply with the DDA – a mere reliance on a paragraph allowing the Landlord to recover the costs of compliance with statute may not help the Landlord as the DDA does not impose an absolute obligations to do works in order to comply.
The Tenant should scrutinise service charge demands, as they may be open to challenge.
If it is identified at lease grant stage that DDA compliance works to common areas are needed and that these are fundamental to the Tenant being able to occupy, a well-advised Tenant should ask for a Landlord's obligation to make these areas DDA compliant. A well-drafted Lease should allow a Landlord to recover compliance costs from all Tenants in equal ratios and should allow recovery whether a tenant asks for the works or the Landlord does them anyway.
Rent review
The account that can be taken of Landlords or Tenant's DDA compliance works will depend on assumptions and disregards in the rent review provisions.
A Tenant will wish to avoid the possibility that its compliance works will be rentalised.
A Landlord will wish to ensure that any Tenant's works which reduce the lettable area will not result in a rent reduction. He will also wish to ensure that non-compliance with the DDA by the Tenant will not be used to argue a discount on hypothetical lease by a hypothetical incoming tenant.
Rent review provisions must therefore, as ever, be considered carefully in lease negotiations
Licence to Assign
As well as considering the financial credentials of a would-be business tenant, a Landlord will now need to consider the nature of a new Tenant's business. In a multi-let property a service provider business coming to a building will create DDA duties for a Landlord in relation to common areas.
Obligation to carry out DDA alterations?
On the Landlord – the DDA does not force physical alterations so if a Tenant wants to be able to force a Landlord to carry out physical alterations the Lease will need to say so.
On the Tenant – same considerations apply as for Landlords. A Lease which contains express obligations could be seen as an onerous Lease and therefore less marketable.
A Tenant's right to alter
If the Lease limits alterations and this would prevent DDA compliance, the DDA imposes an obligation on a Landlord faced with an application for Licence to Alter to issue its decision on reasonable grounds, within a reasonable period of time and subject to reasonable conditions
The Landlord and the Sub-tenant
DDA obligations are no different for those parties but to trigger them it is important that superior landlords are told that the intended work is DDA compliance.
These changes underscore the importance to both Landlords and Tenants in identifying DDA compliance issues throughout the currency of Leases and obtaining good advice from solicitors and surveyors in order to avoid headaches later.
