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22/05/2022

Fire Safety updates

A couple of fire safety updates of relevance to leaseholders.

The Fire Safety Act 2021 sections 1 and 3 came into force on 12 May 2022. The FSA amended the Regulatory Reform (Fire Safety) Order 2005 in order to make it clear that the duties under the 2005 Order extended to

  • the structure and external walls of the building, including cladding, balconies and windows and
  • all doors between the domestic premises and the common parts (e.g. entrance doors to individual flats which open on to common parts)

As of 12 May 2022, the fire risk assessment undertaken by the responsible person under the 2005 Order should definitely include these elements. (It is very much arguable that they were included before. The purpose of the FSA was to clarify and remove any doubts).

The position on flat entrance doors (FED) remains far from clear as to what happens if deficiencies are found. If the FED is demised to the leaseholder – as is not infrequently the case – then the landlord/management company has no power to carry out works to rectify them, and equally, no power to charge the leaseholders for doing so (unless the lease provides otherwise, which would be doubtful).

That said, leaseholders could be compelled to rectify the doors, under a usual lease clause of ‘complying with statutory requirements or requirements of competent authority’, and leaseholders may be content to pay the landlord/management company to do the work. But it is not, as I gather some managing agents seem to think, straightforwardly a way of bringing FED works under their powers and charging for it.

Secondly, an Financial Ombudsman decision has been doing the rounds, though not yet on their website, concerning NHBC liability for additional costs (waking watch and alarm system) for buildings where NHBC had accepted that there were fire safety breaches of building regulations in construction for which NHBC as warranty provider were liable. The redacted decision is here.

NHBC had denied liability for the consequential costs of the fire safety breaches, including waking watch costs and an alarm system, both required as safety measures prior to remediation. The Financial Ombudsman found that the costs were required by the Fire Authority, with evacuation to be ordered if not complied with. These costs could not be separated from the costs of remediation and a refusal to cover mitigation costs was unreasonable.

This decision will hopefully be of use to leaseholders with NHBC (or other warranty) claims in respect of fire safety build defects, their claims should include required mitigation costs such as waking watch or a new alarm system.

 

 

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

6 Comments

  1. Cait T

    Is it more straightforward if the competent authority have issued an enforcement order?

    Reply
    • Giles Peaker

      As per the post – that is way of making the leaseholders do the works (or getting them to agree to pay for it).

      Reply
  2. M. Haigh

    How does The Fire Safety Act 2021 affect “Flying Freeholds” ? In Yorkshire there are a huge number of these, with multiple areas that that abut, overhang or are under adjoining properties. Many have bedrooms of one property over the kitchen of the dwelling below. Also lofts that extend over the bedrooms of the lower properties. Hebden Bridge has hundreds of these ! There is no mention of situations like this !

    Reply
    • Giles Peaker

      It doesn’t apply because the Regulatory Reform (Fire Safety) Order 2005 doesn’t apply to domestic premises.

      Reply
  3. M.Haigh

    Thank you for that. Do you know which regulations apply to this ? Many of these terrace properties are built into steep hillsides and can be 4 or more storeys high. A fire in the lowest dwelling could quickly spread upwards affecting the four or more (freehold) families above. These people could have their very own unwanted ‘Yorkshire Grenfell ! ‘ Surely there must be some statutory legislation regarding Fire Boarding between properties ? This is an accident waiting to happen otherwise ! Thank you once again for your excellent website.

    Reply
    • Giles Peaker

      I’m afraid you’ll have to do your own research on that. I’m a housing lawyer, not a fire safety or planning specialist. But the usual rule would be building regulations at the time of construction or conversion apply.

      Reply

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