Further to our recent article on the Building Safety Bill (“the Bill”) which is making its way through Parliament. However, if you are a block manager, freeholder of a leasehold block, a mortgage broker or a leaseholder, you might have some experience with the changes in building safety already.
More particularly, the introduction of the EWS1 (External Wall System) which is produced following an in-depth survey of the building. The EWS is made up of the outside wall of a residential building, including cladding, insulation, fire break systems, etc. The EWS1 form checks these for safety, if that is required. It was developed by mortgagees with the Royal Institute of Chartered Surveyors and was introduced last December in order to circumvent difficulties with the valuation of flats following the Grenfell disaster. The current law (as we await the Bill) mostly provides a mechanism to place blame on freeholders when safety measures are not followed, rather than an obligation to carry out work. In turn, the EWS1 is not a legal requirement. Despite this, it is seeming in practice that lenders are requiring the EWS1 for peace of mind, rendering it akin to a requirement for a lot of leasehold blocks.
If a landlord does obtain an EWS1 certificate, while it is very helpful to all flat owners within a building, it is not strictly a necessary part of taking their duty of care regarding the risk of fire seriously; nor even a necessary part of management. Accordingly, the question then arises as to whether the costs can be recovered under the service charge clauses in the individual leases. Ultimately, it will depend on the wording of the clause.
As we covered in our article about the Bill, the cost of the increased fire safety obligations will be recoverable through a term which will be implied by the Bill itself. However, at the moment, that ability to imply a term enabling cost recover is not yet law.
If you have been asked to produce a EWS1 certificate and want to understand more about whether the costs are recoverable, please get in contact with either Lee Pearce, Joe Brightman or Molly Frankham.