International Journal of Law in the Built Environment

A. Craig Roussac; Susan Bright

2012 International Journal of Law in the Built Environment

doi: 10.1108/17561451211211714

Purpose – The purpose of this paper is to illustrate, by reference to practical examples, how leases of commercial buildings can be more responsive to environmental issues. Design/methodology/approach – The paper explains how difficult it is within the structure and content of conventional leases to reduce the environmental impact of the tenanted commercial built environment. It explores the interplay between the content and structure of commercial leases and the behaviour of building owners, managers, tenants and occupants, illustrated through the experiences of a large Australian‐based commercial office building owner/operator. Findings – With reference to practical examples it shows how conventional leases stifle innovation and illustrates the difficulties in drafting leases that enable a responsive approach to building management to be adopted. It shows how more fundamental changes that align and reward owners and tenants for working together for mutual benefit are required. Practical implications – The paper presents a number of “model clauses” for encouraging best environmental practices and concludes with a suite of recommendations. Originality/value – Although there have been conversations about green leases in recent years, there is little detailed evidence of their use in the marketplace. This paper remedies that deficiency by taking a case study approach that: illustrates the opportunities and difficulties in negotiating green leases; and shows how attempts to provide innovative building management can be hindered or supported by lease terms.

Cathy Hughes; Neil Crosby

2012 International Journal of Law in the Built Environment

doi: 10.1108/17561451211211723

Purpose – UK Government policy to address perceived market failure in commercial property leasing has largely been pursued through industry self‐regulation. Yet, it is proving difficult to assess whether self‐regulation on leasing has been a “success”, or even to determine how to evaluate this. The purpose of this paper is to provide a framework for this and a clearer understanding of self‐regulation in commercial leasing. Design/methodology/approach – A literature review suggests key criteria to explain the (in)effectiveness of self‐regulation. UK lease codes are analysed in the light of this literature, drawing on previous research carried out by the authors on the operation of these codes. Findings – Lease codes appear to be failing as an effective system of self‐regulation. While there are influential market actors championing them, the fragmentation of the leasing process lessens this influence. The structures are not there to ensure implementation, monitor compliance and record views of affected stakeholders. Research limitations/implications – This work adds to the literature on self‐regulation in general, and provides an insight into its operation in a previously unexplored industry. Research is needed into the experience of other countries in regulating the property industry by voluntary means. Social implications – There are institutional limitations to self‐regulation within the property industry. This has implications for policy makers in considering the advantages and limitation of using a voluntary solution to achieve policy aims within the commercial leasing market. Originality/value – This paper provides a first step in considering the lease codes in the wider context of industry self‐regulation and is relevant to policy makers and industry bodies.

Deniz Ilter

2012 International Journal of Law in the Built Environment

doi: 10.1108/17561451211211732

Purpose – The purpose of this paper is to: distinguish dispute factors from dispute categories, terms generally used interchangeably in the literature; compose consistent and comprehensive lists of dispute factors and categories; and identify the impacts of various dispute factors through empirical analysis of the associations between dispute factors and categories. Design/methodology/approach – In total, 50 construction projects in Turkey (each with a contract amount of 1 million USD or over) were investigated and analysed employing a specially developed dispute research survey form and through interviews with the project managers. Findings – Specific suggestions have been developed for various stakeholders of construction projects, building upon the associations revealed by the correlation analysis. These suggestions relate to the following issues; for employers : contractor selection (experience and technical capability), avoiding variations and punctual instructions; for consultants : preparation of project documents; for contractors : project selection and approach to conflicts; for project managers : defining the project scope, punctual instructions and use of ADR methods; for all stakeholders : project duration, unfamiliarity with local conditions, adversarial approach in handling conflicts and communication problems. Originality/value – This paper suggests an improvement to dispute terminology by differentiating between dispute factors and categories, and identifies the relations between these factors and categories by an empirical study. The results of this research can help practitioners and academicians by providing insights on the dynamics of dispute occurrence. An increased awareness of dispute factors and their specific impacts can allow practitioners to discern and identify the associated risks and endeavour to avoid certain practices, and thus eventually contribute to reducing disputes in the construction projects.

Heath Marshall

2012 International Journal of Law in the Built Environment

doi: 10.1108/17561451211211741

Purpose – The purpose of this paper is to examine two specific circumstances where UK courts may stay the execution of a judgment to enforce a statutory adjudication decision; where a final decision is sought on a discrete point; and where the winning party is insolvent. In this context, there is consideration of what a “binding” decision means for the purposes of Part II of the Housing Grants Construction and Regeneration Act 1996. Design/methodology/approach – A black letter, doctrinal approach is adopted, using two High Court decisions as a focus for wider critical reflection. Findings – The cases where a final determination on part of an adjudication decision is successful are rare and will depend on the facts. Despite some unorthodox recent decisions, the likelihood remains that parties will struggle to challenge part only of an adjudication decision. The leading case authorities support the underlying principle of the Construction Act insofar as adjudication decisions are binding and should be enforced or else the Court will impose punitive statutory interest on the debt. This principle applies even in cases where the adjudication decision is successfully challenged in such cases. Originality/value – This paper also addresses two decisions given by Edwards‐Stuart J. in the High Court, both of which adopt a novel approach to the relevant issues, and hence this discussion of those approaches demonstrates originality.

Daniel Brawn

2012 International Journal of Law in the Built Environment

doi: 10.1108/17561451211211750

Purpose – The purpose of this paper is to examine the relationship between extensions of time and payment of liquidated damages under construction contracts in English law. Design/methodology/approach – This paper sets out the law relating to granting extensions of time and liquidated damages and examines the effect of one upon the other. The JCT form of contract is used as an example, although it is submitted that the position is the same under other forms of contract. Case law is examined to illuminate the judicial approach and highlight inconsistencies, and consideration is given to the position in other jurisdictions. Findings – This paper examines the effect of delaying events in particular circumstances, including where time is “at large”, sectional completion, partial possession, set‐off of liquidated damages and liquidated damages after termination of the contract. Particular attention is paid to concurrent and sequential delays; where both parties are at fault, it may be appropriate to deny the employer any entitlement to liquidated damages and deny the contractor any entitlement to loss and expense. Practical implications – An understanding of the effect that delaying events have upon the contractor's right to an extension of time and the employer's entitlement to liquidated damages is critical for successful project completion. This relationship is not always straightforward and judicial approach is not always consistent. Clarification is required as to the effect of sequential delays. Originality/value – This paper is of value to researchers and practitioners in establishing the legal position in an area that is often complex and obscure.