Cladding Q&A

As first appeared in the Financial Times on Sunday 20 May 2018.

The cladding on my flat has been deemed unsafe. Who is responsible for paying for its replacement and the 24/7 fire watch that is required in the interim?

The first place to look is at the terms of the lease. When it comes to the exterior, normally the landlord or the management company is responsible for its upkeep, and can then recoup the cost through the service charge. As for the fire watch, the question is whether the service charge will allow for the recovery of that cost. Usually landlords will give themselves plenty of room on that front, but it’s always worth checking carefully.

Isn’t it the original developer’s fault? They should pay, surely?

While it may be galling for tenants to hear, if the original developer or contractor adhered to building practices at the time and had the necessary sign offs, including building control, then any action against them is very unlikely to succeed. Moreover, in practice a substantial part of the developer’s liability shifts onto the build quality insurer, such as NHBC, from practical completion.

I’ve checked the lease and it says that these costs can be recovered through the service charge. We think this is unfair seeing as we weren’t to know the property was built with shoddy materials. Can we get the management company to cough up instead?

In the recent case of First Port v various long leaseholders of Citiscape, a block in Croydon with Grenfell-style cladding, the First Tier Tribunal concluded that the costs of both the fire watch and the cladding were recoverable from the tenants through the service charge. That is likely to be the position in most cases, until a higher court rules otherwise, or there is a political intervention. But there is still a requirement for the landlord to consult the tenants as to the proposed costs of such works, and for the costs to be reasonable. In the Citiscape case, cladding costs of between £1.8m and £2.5m were held not to be unreasonable.

In our view, the focus should be on getting safe cladding installed as soon as possible, while reserving your right to challenge the cost later. We understand that the original developer of the Citiscape block, Barratt Homes –perhaps for reputational reasons — has volunteered to meet all the costs of the fire watch and cladding, notwithstanding the outcome of the Tribunal hearing.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.