14 June, 2022
In March 2020, following the Grenfell tragedy in June 2017, the Fire Safety Bill was introduced into Parliament. The Fire Safety Act 2021 set out to demolish any previous loopholes from the previous Regulatory Reform (Fire Safety) Order Act 2005 (FSO). It provides significant development on the issue of fire safety, clarifying any concerns surrounding the responsible person with a clear motive to prevent future tragedies from occurring.
The latest update is of specific interest to leaseholders with Section 1 and Section 3 of the Fire Safety Act 2021 which came into force on 16 May 2022. The Fire Safety Authority (FSA) amended the previous Act to extend duties to (1) the structural and external walls of the building to include cladding, balconies, windows and (2) all doors between domestic premises and common parts, for example entrance doors of flats of a multi-occupied residential building. Furthermore, the Fire Risk Assessment undertaken by the Responsible Person should now reflect the latter, providing clarification and removing any doubt previously held. The Responsible Person of a premise, contained under Article 3 of the FSO, is the person who has control of the premises, which may include building owners, leaseholders, or managers. Therefore, there is a newly placed burden of responsibility to ensure that fire safety is implemented. The Responsible Person needs to review and update the risk assessment process accordingly. Additionally, they must follow the guidance produced under Section 3 of the Act to comply with their duties in Part 2 of the FSO.
The main problem surrounding this is the position held on flat entrance door deficiencies as there is lack of clarity found within the Act. For example, if the flat entrance door is demised to the Leaseholder, then the Landlord or Managing Agent may have no right or power to carry out the works required under Section 3, unless expressed otherwise in the Lease. However, Leaseholders could be compelled to rectify the doors under a Lease if it contains a clause to comply with 'statutory requirements of competent authority' or similar. Leaseholders may be under an obligation to carry out the works in alignment with legislation. If this is the case, then Landlords and Managing Agents may be asked to carry out the works by the leaseholder and re-charged, yet this would be up to the needs of the leaseholder and therefore, decided on a case- by case basis.
Additionally, the Bill fails to provide clarification on whom will be the bearer of costs of historical and future remedial works to the Premises to assure fire safety compliance. It could quite possibly be Leaseholders who could face footing an expensive bill for the remedial works including the removal of unsafe cladding. Nevertheless, the Government has announced that Leaseholders in high-rise building above 18 metres will not incur costs of replacing cladding. Instead, the Government will be providing £5.1bn of funding for cladding for these buildings and a long-term and low interest loan for buildings between 4-6 storeys. However, this funding is only applicable for unsafe cladding removal, with no mention of help towards other fire safety costs such as internal compartmentation and insurance. Another avenue for landowners and Managing Agents to explore is the warranty provided by the construction provider where they are in breach of fire safety precautions, following a recent decision by the Financial Ombudsman.
The Government continue to push with the need to create 'generational change' to the way high risk and residential buildings are constructed and maintained as the Building Safety Bill (BSB) received Royal Assent on 28 April 2022. The latest reforms with the BSB and the FSA set out to ensure that building safety is a priority, providing needed accountability but still lacking clarity in the areas concerning management and costs bearing.
For more information contact Rebecca Davidson in our Housing & Regeneration department via email or phone on 01772220143. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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