The last few weeks have seen a number of developments and updates relating to building and fire safety in the residential leasehold sector. This week’s Legal Update contains a ‘round-up’ of those developments.

Government confirms EWS1 forms not required for buildings without cladding

EWS1 forms (e.g. External Wall Fire Review forms) were introduced in December 2019 as a standardised industry-wide valuation process, to give lenders assurance as to the safety a building’s external wall system, where safety implications may exist and affect the value of the lender’s security. The form records what assessment has been carried out for the external wall construction of residential apartment buildings where the highest floor is 18m or more above ground level, or where specific concerns exist.

There is no legal requirement that a building has an EWS1 form, but it is an industry requirement for any sale or re-mortgage where the above conditions apply. This is separate to the requirement for the responsible person to have a regulatory fire risk assessment for the common parts of a residential block of flats. At present there is uncertainty over the extent of this obligation and specifically whether it extends to the structure and external walls of a building, including cladding, balconies and windows. This is hoped to be clarified once the new Fire Safety Act is passed (see here for more).

The form may only be completed by a competent person within the criteria set by the Government, and is valid for a period of 5 years. The form provides for two options :-

Option A - where the external wall materials are unlikely to support combustion.

Option B - where combustible materials are present in the external wall system.

Any recommended remedial works are identified in the form.

Experts in fire safety have become increasingly in demand as a result of the introduction of the EWS1 forms, as well as the increased scrutiny over the safety of high-rise residential buildings and their construction. This, together with struggles over satisfactory Professional Indemnity cover, has seen an increase in the cost of such services, and caused inevitable delays in assessments being undertaken.

Many affected leaseholders will, therefore, welcome recent announcement by the Government following agreement reached with the RICS, UK Finance and the Building Societies Association on 21 November 2020, that EWS1s are NOT required for buildings without cladding. The Housing Secretary Rt Hon Robert Jenrick MP has said that the announcement will provide “certainty for the almost 450,000 homeowners who may have felt stuck in limbo”.

As part of this announcement, the Government has also committed nearly £700,000 to train more assessors, to speed up the process where an EWS1 form is required. The training will be delivered by RICS from January and will mean up to 200 additional assessors will be qualified to carry out the EWS1 assessment within a month, 900 within 3 months, and 2,000 within 6 months.

Housing, Communities and Local Government Select Committee pre-legislative scrutiny on draft Building Safety Bill

In addition to the proposed new Fire Safety Act, a new Building Safety Bill is making its way through the Parliamentary process, with the aim of improving building and fire safety. The Bill contains wide-ranging changes relating to building standards and the introduction of a new Building Regulator, that will enforce the new rules and take strong actions against those who break them.

The Bill also includes proposals which would amend the Landlord and Tenant Act 1985, to facilitate the recovery of costs incurred by the landlord in the monitoring and managing of building safety. This would be known as the “building safety charge”, and would be separate charging regime to the service charge regime set out in the lease, “so that costs incurred on building safety measures will be readily identified and accounted for”.

On 24 November 2020, the Housing, Communities and Local Government Select Committee published its report on the pre-legislative scrutiny of the Bill. The Committee raised concerns that the building safety charge would result in leaseholders being responsible for the costs of remediating historical safety deficiencies for which they were not responsible, and which may have pre-dated their occupation. On this the Committee said :-

“We continue to believe that residents should not bear any of the costs of remediating historical building safety defects and are deeply concerned by the Government’s failure to protect them from these costs… The Government must recommit to the principle that leaseholders should not pay anything towards the cost of remediating historical building safety defects, and, in order to provide leaseholders with the peace of mind they deserve, amend the Bill to explicitly exclude historical costs from the building safety charge”.

The Government’s response to the report will be eagerly awaited, particularly by building owners and those responsible for building safety, who will no doubt expect the costs for any building works, regulation and management to be covered by leaseholders owning and living in those flats.

31 December 2020 deadline for claims on Government’s Building Safety fund for non-ACM cladding

In March 2020, the Government announced that a £1 billion fund would be made available to support remediation of unsafe non-ACM cladding on residential buildings of 18m and over. The registration prospectus was published in May 2020, with registration being open between 01 June and 31 July 2020. Registration was followed by an assessment phase, to confirm technical eligibility for the fund, and a full application process. Applications for funding will only be considered by building owners, freeholders or responsible entities who registered within the deadline.

Statistics published by the Ministry of Housing, Communities and Local Government show that a total of 2,784 registrations were received, of which 1,587 were in London and 1,197 in the rest of England. As at 25 September 2020, 138 decisions had been made on registrations based on the information submitted, with 65 cases proceeding with a full application and 73 being ineligible for funding based on the published criteria.

Full applications must be made by 31 December 2020, with works contracted to start by 31 March 2021. Eligible costs will be those costs which could be attributed to the capital costs of the project. Ongoing revenue costs, such as the cost of interim safety measures (including waking watch costs), are not eligible. The fund will provide a grant to cover the ‘reasonable’ cost of eligible items only, of accepted applications.

For any further information, please contact Faye Didcote on 01435 897297 or Faye.Didcote@kdllaw.com.

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