John Baker takes a look at the three levels of the landlord and tenant competency and reviews the requirements of this popular competency choice
Landlord and tenant (“L&T”) is selected as a core competency by many APC candidates following the commercial, valuation, residential and rural pathways because it is often a fundamental part of a surveyor’s work that is inextricably linked with other competencies, such as property management, leasing/letting and valuation.
L&T covers a wide area, which makes it all the more important for candidates to convey to the APC panel where their individual experience lies so that the panel can ask experience-based questions. A well-written summary of experience is therefore essential.
While most of the examples and resources here are drawn from a commercial property perspective, the principles outlined can apply across other pathways.
Level 1
As with all competencies, knowledge (Level 1) underpins experience (Level 2) and the ability to provide client advice (Level 3). L&T is no different, but there is a lot of Level 1 knowledge to take in, including: primary legislation (eg the Landlord and Tenant Act 1927, the Landlord and Tenant Act 1954 (“the 1954 Act”), the Landlord and Tenant (Covenants) Act 1995); secondary legislation (eg the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003), RICS Guidance (eg the practice statement Surveyors acting as expert witnesses, 4th edition), rules (eg Civil Procedure Rules) and codes of practice (eg Code for Leasing Business Premises in England and Wales 2007).
A lot of L&T work is very procedural. For example, if candidates claim experience of business tenancy lease renewals, they will need to demonstrate knowledge and understanding of the notice procedures and requirements set out in the 1954 Act.
If candidates have declared L&T to Level 3, then there is a very good chance that at least one member of their APC panel will be an L&T expert, so their Level 1 knowledge will be thoroughly tested. Therefore, candidates should not try to bluff their way through this competence.
The final assessment submission template states for Level 1 competencies: “Provide a statement of learning, linking wherever relevant to your CPD record.” Two tips for recording Level 1 experience are: follow the guides; and structure continuing professional development (“CPD”). This may sound obvious, but too many candidates fail to follow these simple instructions and instead either recite theory or talk about their experience under Level 1, neither of which convey to the panel where their knowledge has been gained. Properly structured and relevant CPD will make completion of the Level 1 templates much easier, but candidates should ensure that their summary of experience and CPD record are consistent.
Level 2
APC Pathway Guides are a good starting point for understanding the types of activity that constitute Level 2 experience, and two typical L&T examples are: reading and interpreting leases; and entering into negotiations.
The APC panel will be looking to validate the experience that candidates have claimed, so they should be sure to include in their summary of experience real examples of Level 2 activities that they have undertaken, making appropriate references to the sector and location of properties concerned.
They should mention relevant points, such as identification of a restrictive user clause, because they could provide useful “hooks” for questions for which answers can be rehearsed. Responses to questions can be enhanced by relevant references to case law if appropriate, so for example, reference to Plinth Property Investments Ltd v Mott, Hay & Anderson [1979] 1 EGLR 17 is likely to impress the panel if answering a question regarding restrictive user clauses. L&T assessors like to hear references to case law now and again.
A pitfall to avoid is lacking the Level 1 knowledge that underpins claimed experience. For example, if candidiates mention dealing with a lease renewal of a business tenancy but cannot identify the relevant deadlines for notices or applications to court, then they are likely to come unstuck.
Level 3
Level 2 activity is elevated to Level 3 activity with the provision of advice to clients, or dealing with more unusual or challenging cases.
In the context of L&T, this may well involve advising a client on options
(and making appropriate recommendations) when negotiations have been exhausted, which could boil down to accepting the final offer available or proceeding to dispute resolution. While the APC panel is unlikely to expect a traditional APC candidate to have sole responsibility for representing a client in front of an arbitrator or an independent expert, the candidate will be expected to understand the key issues affecting L&T dispute resolution, including the measures available to protect the client’s position on the issue of costs, or perhaps an involvement with assisting a colleague in the dispute resolution process.
To provide Level 3 advice, a candidate needs to fully understand the subject in question. It is one thing to know what to do, but a Level 3 candidate needs to understand why certain processes are followed, which requires depth of understanding that cannot come from simply shadowing a senior colleague.
A good supervisor or counsellor will help to provide a candidate with the right training and engagement with a project and will not simply task the candidate with the more routine aspects of the job without giving the level of involvement needed to satisfy Level 3 activity.
Things to remember
- Candidates should structure their CPD to ensure that they gain sufficient Level 1 knowledge and understanding.
- They should explain their Level 2 L&T activities by reference to real examples to encourage experience-based questions in interview.
- They should ensure that they achieve Level 3 by taking responsibility to advise clients rather than just shadowing senior colleagues.
- For commercial pathway candidates, L&T is not just about the 1954 Act.
- L&T topics can make good case study material because they can often combine with other optional and core competencies, but candidates should ensure that they incorporate genuine key issues and options.
- If candidates work “client-side” rather than in private practice, their “client” is the person or body to whom they report, which might be the board of directors or executive committee.
HOT TOPICS
MEES To what extent might new leases need to incorporate clauses to reflect the implications of the Minimum Energy Efficiency Standards regulations?
Measurement How might the RICS Property Measurement 1st edition impact on L&T work involving offices and residential properties in 2016?
Dispute resolution As some markets/sectors begin to experience rental growth, dispute resolution is likely to become more prevalent in L&T
EXAMPLE QUESTIONS*
Level 1
On what grounds could a landlord oppose the renewal of a business tenancy?
Level 2
From receiving the initial telephone call from the landlord inviting you to act, explain the processes that you followed for the rent review instruction at (specific example).
Level 3
What influenced your advice to your client at (specific example) over whether to accept the tenant’s Calderbank offer or proceed to arbitration?
*Don’t assume that the questions given here will be asked at an APC assessment. Assessors will focus on and pose questions on the basis of the candidate’s declared competencies, pathway guide requirements, up to date developed knowledge base and the examples provided in their summary of experience, etc.
USEFUL RESOURCES
RICS APC Guides These should be read at least once every three to four months and fully understood. Candidates from outside the UK also need to check their regional websites for any local APC requirements: www.rics.org
APC Explained Masterclass This helps candidates to understand what needs to be done to achieve the APC, including a walk-through of the DeLever APC process timeline and myAPC Diary with an explanation of what to do at each key milestone: www.delever.com
Timeline wallchart Free overview of the APC process: www.delever.com
Supervisor and counsellor APC training – formal CPD Key tips for appropriately managing and supporting candidates, plus free 1-2 hours of formal CPD: www.delever.com
USEFUL WEB LINKS
SUPERVISORS AND COUNSELLORS
How to help
Early on in a candidate’s training, help the candidate to structure CPD by identifying suitable CPD activities (eg structured reading, in-house or external training, web classes, etc) that are relevant to the work that they will be undertaking.
As the candidate’s training develops, empower the candidate to take responsibility for providing client advice to elevate Level 2 tasks to Level 3 activity.
John Baker FRICS is a landlord and tenant specialist, a dispute resolver, a chair and assessor of APC panels and a DeLever consultant trainer. Follow Jon Lever on Twitter: @deleverapc
