The erection of scaffolding over tenanted commercial properties is a contentious subject in the landlord and tenant arena.
In order to strike the right balance between each party’s respective rights, knowing the facts is essential.
The lease
Many leases contain express provisions permitting the erection of scaffolding for the development of neighbouring premises belonging to the landlord. Often, however, that right is reserved only to the landlord and will not assist third parties. It may include a qualification that any scaffolding should not affect a tenant’s use and enjoyment of and/or access to the premises.
Assuming the lease does not permit the erection of scaffolding – or scaffolding is not permitted if it interferes with the tenant’s occupation – a claim in common law of nuisance is usually the simplest way of seeking recompense. Tenants frequently approach landlords to agree rent concessions on this basis, irrespective of whether the landlord has erected the scaffolding.
Tenants should be careful, however, not to waste time and money in pursuing their landlords on the grounds of nuisance when scaffolding has been erected by another tenant of the same landlord, unless the landlord is involved in some way, eg the landlord has expressly consented to the erection of scaffolding, being fully aware of the impact it would have on the neighbouring demise.
Ordinarily, where a landlord lets premises to a tenant and the tenant does something at the premises which becomes a nuisance, the landlord cannot be made responsible just because they are aware of the nuisance and took no steps to prevent it. The landlord must participate directly in order to be liable.
As such, it is sensible to make the claim only against the person who erected the scaffolding, unless a landlord’s participation can be demonstrated.
But for those who have erected scaffolding, only for their tenant/neighbouring tenant to complain, what claims might be faced?
Nuisance
Anyone who erects scaffolding that gives rise to a nuisance can be liable to a claim made on that basis. To fight a claim, a defendant will have to show that they have taken all reasonable steps to minimise inconvenience to neighbouring occupiers.
Steps could include: consulting with neighbours or tenants/sharing information; agreeing scaffolding design in advance; sharing and agreeing timescales; trying to ensure scaffolding does not coincide with peak trade times; ensuring scaffolding design does not affect access to/from neighbouring premises; and asking for artwork to be displayed on scaffolding hoardings for the duration of the development.
However, when physical damage is caused by scaffolding, the steps taken to minimise inconvenience will be irrelevant and there will be a liability to make good any damage and compensate appropriately.
Forfeiture
Developer tenants who need to erect scaffolding over the demise of a neighbouring tenant of a mutual landlord should check the provisions of their own lease regarding landlord/neighbouring tenant consent before proceeding.
Obtaining planning permission from the local authority does not mean it is fine to proceed without first obtaining necessary consents under the lease. Doing so could leave developers open to a forfeiture claim by the landlord, in addition to a claim in nuisance from adjoining occupiers.
Breach of quiet enjoyment & derogation from grant
Claims may also be brought against landlords who erect scaffolding, on the basis of breach of quiet enjoyment and non-derogation from grant.
In the absence of an express exclusion, a landlord always covenants to allow the tenant to “quietly enjoy” the premises without undue interference from the landlord, whether or not they have a reserved right to erect scaffolding. The question for the court will be whether the landlord has acted reasonably in exercising his rights, while maintaining the tenant’s entitlement to quiet enjoyment. A landlord who erects scaffolding that interferes with a tenant’s use and occupation can be liable to compensate a tenant even if the tenant suffers no loss.
Much will depend on what was agreed when the lease was granted, so it is sensible to try to refer to the intended development in the lease and caveat the quiet enjoyment covenant accordingly.
A landlord also cannot “derogate from grant”. Where landlords demise premises to a tenant but then cover the premises in scaffolding due to works to a neighbouring property, they may have difficulty arguing that the tenant is still able to use and enjoy its property as it had intended, unless there are express reservations that clearly set out what a tenant is entitled to do and when.
It will always be a balancing act between each party’s rights and obligations when considering potential claims. Developers and landlords who wish to erect scaffolding should seek legal advice in advance to avoid additional costs and delays down the line.
Victoria Dacie-Lombardo is an associate and Chhavie Kapoor is a partner at Mishcon de Reya LLP
Dos and Don’ts when erecting scaffolding
Do:
■ Check the lease. Key points to consider:
1. What is the extent of the tenant’s demise? Will the scaffolding touch any part of the tenant’s property?
2. Does the landlord have a reserved right to redevelop adjoining property? Does this right extend to third parties?
3. Does the tenant’s consent need to be obtained?
4. What are the express terms in relation to scaffolding? Be careful of restrictions that affect the time of year during which scaffolding can be erected.
■ Consult with tenants/neighbouring occupiers about the plans and timescales involved.
■ Seek agreements from tenants or neighbours in writing where possible.
■ Seek legal advice at the outset of any development where adjacent premises are occupied.
■ Offer to pay for temporary signage/artwork on scaffolding hoarding.
Don’t:
■ Proceed with erecting scaffolding before consulting with affected parties or obtaining necessary consents.
■ Assume that planning permission equals consent under the lease (if you are a developer tenant).
■ Adopt a “wait and see” approach to complaints.
