For further information, please contact Gavin Whitney, Partner, Fladgate LLP (firstname.lastname@example.org)
Your landlord wants to carry out works to your property which may require the erection of scaffolding; nothing to worry about, surely? Wrong. There are many issues to consider when a landlord wishes to erect scaffolding (or just does it anyway); not least whether your lease permits them to do so.
First things first. It is essential that you review the provisions of your lease. Has the landlord reserved the necessary rights to erect scaffolding? Many leases contain provisions which allow the landlord to do so (usually in order to develop neighbouring premises owned by it). Sometimes the reservation to the landlord will contain a proviso that the landlord may erect scaffolding on the basis that this does not interfere with the tenant’s use and enjoyment of the premises or affect the tenant’s access.
It is also extremely important to consider the impact of the scaffolding on your (and any undertenant’s or licensee’s) business:
All of the above may have a substantial (negative) impact on your business and you should think carefully about how great an impact this might be. It is not without reason that you so often see ‘OPEN FOR BUSINESS’ signs strung across scaffolding hoarding.
The easiest approach is to directly contact the landlord to discuss its plans and to seek to agree certain concessions in respect of the erection of scaffolding. It may be that the landlord will agree a rent free period if the scaffolding is likely to cause inconvenience or isn’t permitted by the lease. It may also agree a timescale within which the scaffolding is to be dismantled and provision for temporary signage/lighting to be added to the scaffolding.
Of course if the landlord is unhelpful, or has already erected the scaffolding, it is a bit late to try and agree ways of minimising any disruption. You may have a claim for breach of quiet enjoyment: a landlord will almost always covenant in the lease to allow the tenant to quietly enjoy the premises. If the premises is covered in scaffolding and this is proving detrimental to the tenant, there is an argument that the landlord has breached this covenant (e.g. if the scaffolding materially obstructs the main access/egress to the premises or completely obscures your signage which is a fundamental means of advertising your business) and a court may award compensation even where the tenant has not suffered any loss. An alternative route is to argue that the scaffolding gives rise to a nuisance, where a landlord would then need to show that it took all reasonable steps to reduce disruption to tenants.
In any event, scaffolding is not something that you should ignore or just hope will go away. Take independent legal advice as soon as possible in order to talk through the best options for you and your business.