It is unlikely that anyone has forgotten – will ever forget – about the disaster at Grenfell Tower in July 2017, but recent Tribunal cases should serve to remind conveyancers about the importance of finding out about fire safety when buying flats.Hopefully, we all look to obtain a recent Fire Risk Assessment but there is no point in having an assessment if its recommendations have not been complied with, so this must also be ascertained. Although it is not just a question of money – human life is at stake – it is the case that if the recommendations have not been complied with this may well mean that any insurance policy covering the block against fire is invalidated. But to the cases.
Adriatic Land 1 (GR3) Ltd v Metis Management (Sheffield) Ltd [2018] EWLVT MAN LV FFT 00CG 0015 (18 January 2018)
This involved a block of 118 flats. There was a head lease of the block to the management company, the occupational leases being granted out of it. The landlord was seeking a declaration that there had been breaches of the terms of the head lease. There were the usual covenants as to repair in the lease and also a covenant to comply with any ‘notice, order, proposal, requisition or direction from any public authority’ in respect of the premises and to ‘carry out any repairs or other works required by that notice’.
It had been discovered that the block had the same kind of cladding as at Grenfell. South Yorkshire Fire Service had served a notice on the tenant requiring the tenant to take various steps to comply with the Regulatory Reform (Fire Safety) Order 2005. These included remedying defects in the ‘compartmentation’ of the property i.e. the provisions to stop the fire spreading between the various floors and units in the block and also to address the risks caused by the cladding. The landlord claimed that the tenant was in breach with the terms of the lease as it had not replaced the cladding, nor had it taken steps to remedy the compartmentation issues.
The First Tier Tribunal (Property Chamber) held that there had indeed been a breach of the covenants in the lease.
Re Orchard Plaza, Poole [2018] EWLVT CHI LVT SC 00HP 0083 (18 January 2018)
This was another block with Grenfell Tower type cladding. The Fire Officer had served a notice requiring extra heat detectors in each unit and the establishment of a 24 hour ‘waking watch’ to patrol the building until this had been accomplished. The management company was seeking dispensation from the requirement to consult the flat owners before undertaking such major works. It was held reasonable to order such a dispensation, although the Tribunal did say that it was making no order as to whether carrying out the works was itself ‘reasonable’.
However in E & J Ground Rents No 11 LLP v Various Tenants [2018] MAN 00BR LSC 0068 (24 January 2018) the Tribunal was asked to decide whether the cost of providing Fire Marshalls to provide a ‘waking watch’ in a block with Grenfell cladding was recoverable though the service charge.
The lease contained a provision that the costs of ‘complying with the requirements and directions of any competent authority and with the provisions of all statutes regulation orders and by-laws made thereunder relating to the Building in so far as such compliance is not the responsibility of the lessee or any of the lessees of the Properties’ could be charged to the service charge. The cost of the ‘waking watch’ was recoverable under this clause.
But if we are talking about money, the question arises as to who bears the cost of replacing the cladding itself. Are the flat owners going to have to foot the bill through the service charge? There has been much discussion over who is to blame for Grenfell – the architects, the contractors, the landlord etc- but proving liability against such people will not be easy and will certainly be time consuming – and very expensive in itself. In the short term it is likely that the flat owners will have to foot the bill through the service charge, although this will all depend upon the terms of the service charge provision itself. Buyers – and conveyancers – beware!
