Clad in uncertainty

At the worst possible time, the Government has caused increased uncertainty and added stress to thousands of people.

Following a much-needed review of the safety of all high-rise residential buildings, many blocks have been identified as having unsafe cladding. The cost of remedying the defects is, more often than not, extremely expensive.

The Government has set up a Building Safety Fund (BSF) to improve building safety standards, but the BSF appears ill-conceived and inadequately resourced. The Government acknowledges that the Fund will cover only one third of the likely cost to remedy defects. To access the Fund, applications need to be submitted and the works started by 31 March 2021 and applications are being dealt with on a first come first served basis.

However, the responsibility for resolving cladding issues should not lie with leaseholders. A concerted effort is required of the Government to commit whatever resources are needed to ensure that all residential blocks are safe for all occupiers (flat-owners and tenants alike)

At the end of September. according to figures published by the Ministry of Housing Communities & Local Government, there had been 2,784 applications to the Fund, of which only 65 had been allowed to proceed to the formal application.

Many leaseholders are understandably worried:

• They are reliant on managing agents, often appointed by freeholders, in respect of applications to the BSF;
• To the extent that there is a shortfall after any BSF funding available, they are being told that they will have to pay for the works through the service charge provisions in their leases even though their flats complied with fire safety and building regulations requirements when the flats were built; and
• Unless they are able to obtain an external wall safety form (EWS1) – from one of a very small pool of certified experts, they will be unable to sell their flats, and may be unable to remortgage and therefore trapped on expensive variable rate mortgages.

It is by no means certain that leaseholders are legally obliged to foot the bill. They should collaborate as a coherent and informed group to protect their position and seek specialist advice, and should endeavour to ensure that their managing agents make an application to the Fund immediately.

However, the responsibility for resolving cladding issues should not lie with leaseholders. A concerted effort is required of the Government to commit whatever resources are needed to ensure that all residential blocks are safe for all occupiers (flat-owners and tenants alike). As a starting point, the available funding requires increasing significantly, the application process must be simplified and accelerated, and the 31 March deadline should be scrapped.

This post is for information only and is not intended to amount to advice on which you should rely or take any action. If you wish to obtain legal advice in respect of the content of this article or otherwise, please contact Nick Green or Oliver Kenner.