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Fire safety, cladding and compartmentalisation

John Murray and Stephen Radcliffe consider key fire safety issues for social landlords including in relation to cladding and compartmentalisation.

Since the travesty at Grenfell Tower, fire safety in flats and buildings of multiple occupancy, defects in buildings, and the law and regulation underpinning it has been under intense scrutiny. Ongoing investigations have identified many properties with a variety of fire safety issues, particularly in relation to cladding and compartmentalisation.

Compartmentalisation

Effective compartmentalisation requires that every joint, imperfection or opening within a property which allows services to pass through adjoining walls and common areas should be adequately protected by sealing or fire-stopping. This requirement is designed to contain the spread of fire and is set out in Approved Document B of the Building Regulations (2006 Edition). Lack of appropriate fire stopping existing at the completion of construction is considered a latent defect.

Where compartmentalisation issues are discovered, the landlord may be able to revert to the contractor to undertake the works, by utilising collateral warranties or procuring third party rights for the benefit of the leaseholders.

Leaseholders may also ask their landlord to pursue a breach of contract claim against the developer/contractor, although this is subject to long stop limitation dates, generally of up to 12 years from the date of transfer.

Alternatively, leaseholders may pursue a negligence claim, the time limit being 6 years from the accrual of the cause of action and/or 3 years from the earliest date the leaseholder knew/reasonably ought to have known the facts necessary to bring an action.

The above causes of action are subject to an overall time limit of 15 years from the act of negligence giving rise to the latent defect/damage.

If the landlord is unable to pursue any of the above options, it may be their responsibility to undertake the remedial works under the terms of their lease; usually at the leaseholder’s expense.

Fire Safety Bill 2020

The Government’s response to these issues has come in the form of the Fire Safety Bill 2020. The existing law is contained in Regulatory Reform (Fire Safety) Order 2005. The Fire Safety Bill is expected to remedy the following deficits within the current legislation, namely that it:

  • Probably does not apply to cladding, and
  • There is an ambiguity about how it applies to the front doors of flats where they are demised under leases; a longstanding lacuna in the law for landlords trying to ensure robust compartmentalisation in flat blocks.

The problem then becomes, who pays for these improvements? Under a long lease, costs incurred in meeting statutory requirements are usually the responsibility of the leaseholder through their service charge covenant. There are many pressure groups campaigning to ensure the Fire Safety Bill 2020 does not allow landlords to pass the costs of vital works onto the leaseholders via service charge increases. Two Conservative MPs have now proposed an amendment to the bill which would prohibit the owner of a building from passing any costs of remedial works required under the Act to leaseholders or tenants.

The Government are currently working on alternative funding plans but it is yet to be seen how this will come to fruition.

Funding remedial works

Cladding

From 1 June, building owners or managing agents were able to apply to the Building Safety Fund for funding for the remediation of unsafe non-ACM cladding systems. Should the application be successful, the applicant can receive up to 80% of the total cost of works. The leaseholders should be advised if the building has been approved for funding. This funding may enable building owners/managing agents to fund remedial works where the cost could otherwise have fallen to the leaseholders. The application window for the fund unfortunately closed on 31 July 2020.

Latent defects

NHBC warranties should be the first port of call in claims for construction defects. The limitation period for NHBC warranties is usually 10 years from completion, a formal application by the freeholder must be made before this date.

Consultation requirements

Before commencing any remedial works, it is important that a landlord consider the consultation requirements under section 20 of the Landlord and Tenant Act 1985. Should you require further assistance adhering to the consultation requirements or applying for dispensation, this is something we can help you with.

John Murray is a partner and head of the Social Housing Group and Stephen Radcliffe is a partner in the Construction and Engineering Team at Ward Hadaway.

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