12 Days of Christmas – Day 9

On day 9, we look at a First-Tier Tribunal decision granting a Remediation Order (RO) under section 123 of the Building Safety Act 2022 and provides intel on how the tribunal may decide whether to grant one.

Background

A block of flats (being a ‘relevant building’ as defined in section 117 of the Act) was developed in 2005 and bought by the respondent landlord in 2015.

In 2021 and 2022 the landlord commissioned reports which confirmed serious fire safety issues at the building. Despite the landlord beginning the statutory consultation process to implement the necessary works, the leaseholders applied for a RO requiring the landlord to remedy the issues by a specified time.

The landlord’s repairing obligation under the leases covered the structure of the building, the structure of the balconies and roof terraces and all other parts of the building not included in the leases of any flats. The demise to the leaseholders included the floor surface only of any patio or balcony or roof terrace within the demised premises.

Decision

Prejudice to tenants without a remediation order too great: After weighing up the prejudices to both the landlord and to the leaseholders, the Tribunal granted a RO requiring specified works to be carried out by the landlord within a set timescale. The Tribunal was influenced by the fact that, if a binding order were not made, the leaseholders would be at the mercy of the landlord as to the carrying out of the works (and the timescale for the works) and, in the meantime, they would have to continue to live in an unsafe building and own flats that were unsaleable and unmortgageable.

Extent of obligation to repair and maintain: The Tribunal decided that as floor coverings to the balconies and terraces were specifically let to the leaseholders, the timber decking on the balconies and terraces also fell within those leases. Although the landlord under the leases had power to carry out work to the decking, it had no obligation to do so. As there was also no statutory obligation on the landlord to carry out such work, the Tribunal had no power to make an order in relation to the decking (it being the obligation to repair and maintain which triggers the grant of a RO).

Ordered post-completion reports: The Tribunal decided that, although not expressly covered in section 123, it had the power to include within its order a requirement for reports to be undertaken once the works were finished so the leaseholders could verify that the defects had been remedied.

Takeaway

This decision shows that a RO can be granted even where a landlord has been proactive after becoming aware of the issues that needed dealing with and was clearly committed to carrying out the necessary remediation works.

It also shows the need to check carefully exactly what has (and has not) been included in a lease when applying for a RO as they can only be made against a landlord who is required under the lease (or by statute) to repair and maintain anything relating to the relevant defect.

Your reward for reading this far is a festive joke: How do Christmas trees get their email? They log- on.