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.