Welcome to the fourth of our RED Alerts of 2023.
Also featuring in this month's update:
Radcliffe Investment Properties Ltd v Meeson [2023] UKUT 209 (LC)
Summary
The Upper Tribunal considered whether the cost of a waking watch should be payable by leaseholders, where they were incurred as a result of the landlord's failure to carry out necessary fire risk assessments.
The facts
The proceedings concerned a building in Manchester, Park Rise, which had been converted from offices to residential flats in 2018.
In January 2018, before works were completed, a fire risk assessment was carried out, recording the that the likelihood of fire at the premises was “medium” and that there was a risk of “moderate harm” in the event of a fire. It was therefore considered “essential that efforts are made to reduce the risk”. The landlord took no further steps to review the fire risk assessment.
In May 2019, a leak damaged the fire alarm control panel to the building. This alerted the fire service who inspected and expressed concern over a number of features of the building. The fire service advised that a waking watch be implemented with immediate effect. It also served the freeholder with an enforcement notice due to failure to maintain a suitable and sufficient Fire Risk Assessment under article 9 of the Regulatory Reform (Fire Safety) Order 2005 (RRO 2005).
A two-person waking watch was implemented and continued until the fire officer's requirements for the building had been satisfied. The total cost of the waking watch was £57,894, which was charged to the leaseholders via their service charge.
The leaseholders applied for a determination under section 27A of the Landlord and Tenant Act 1985 that the costs were not payable as they were incurred due to the landlord’s failure to comply with the RRO 2005.
The decision
The FTT held that:
- In principle, the cost of providing a waking watch was capable of being a service charge item.
- Only the cost of the first 7 days of the watch, during the period in which the fire panel was repaired, was recoverable. There was no challenge to the quality of the service and the leaseholders accepted that, for that service, the cost incurred was reasonable.
- The waking watch costs, after the rectification of the fire alarm defect, are attributable to the acts and omissions of the landlord or its agents in relation to fire risk assessment. In the circumstances those acts and omissions render the costs of the waking watch unreasonable.
The freehold appealed to the Upper Tribunal, however, this was dismissed. The Upper Tribunal held:
- Whether an amount is reasonable must be assessed in the light of the specific facts of the case.
- If the freeholder had complied with its duty under the RRO 2005, it would have identified the extent of the issues and avoided the costs of the waking watch.
- The FTT was entitled to conclude that the costs of the waking watch were not payable by the leaseholders.
Our comment
This case is a useful reminder of the importance of compliance with statutory requirements, and the knock on effect this may have on recovery of service charges.
The Building Safety Act 2022 was not considered in this case, but going forwards, this will put an additional spotlight on fire safety.
