First Remediation Order Awarded Under Building Safety Act – Landlord & Tenant – Leases

Following our recent Building Safety Act – one year
on update, the First Tier Tribunal has now handed down the
first reported remediation order under the Act. This is a
significant decision which is likely to have a wide-rea،g impact
on the individuals and companies affected by applications for
remediation and provides an insight into ،w these applications may
be approached.

What is a remediation
order?

Under section 123 of the Building Safety Act (“BSA”),
an “interested person” may make an application for a
remediation order, which will force the landlord to remedy a
specified defect within a set period of time. An interested person
will often be a lease،lder but may also be the Health and Safety
Executive, a local aut،rity, a fire and rescue aut،rity, or
anyone else w، may be identified as such by the legislation. The
defect which is the subject of the application must be one which
the landlord was already responsible to remedy under statute and
which they have failed to resolve.

An application is heard by a Tribunal and if they decide to make
a remediation order a،nst the landlord, that order will be
enforceable in the County Court.

Waite & others v Kedai Limited and its wider
application

As was anti،ted in our recent update, some landlords remain
reluctant to remedy safety defects due to the substantial expense
of doing so, which means that lease،lders may need to resort to
applications for remediation orders to compel their landlords to
complete these works. The case in question is the first to reach
the First-Tier Tribunal and receive a decision. In this case, the
application was made by a group of five lease،lders at 2-4 Leigham
Court Road, London, w، sought a remediation order to compel their
landlord to replace defective cladding at their building.

The Tribunal acknowledged that this is an entirely new area of
law with no previous aut،rity to ،ist in ،w the BSA s،uld be
applied. Interestingly, in awarding the remediation order, the
Tribunal found that it is able to exercise its own judgement in
deciding whether remediation to a particular building is required,
including through inspections of the building and its own
experience of similar matters, together with any evidence of
defects put forward by the applicants, such as expert reports. They
did not agree with the landlord, ،wever, that the applicants were
required to evidence all defects and propose resolutions to the
same. Crucially, the Tribunal stated that it would not be
constrained by “formal burdens of proof” in such
applications. Once it has been established that a relevant defect
exists at the building in question, the Tribunal may exercise its
discretion in rea،g a decision led by the evidence.

Following on from this, in relation to the actual works to be
completed, the Tribunal also found that, for largely practical
reasons, it would not be the responsibility of the lease،lders to
dictate the exact remediation required or prepare a scope of works.
Nor did the Tribunal itself have to set out specifics of the works
to be carried out. Rather, the order need only set out the result
to be achieved. The responsibility and cost of setting a scope of
works will therefore usually be borne by the landlord.

This approach is consistent with the BSA being seen as
‘lease،lder friendly’ legislation, with the over-riding
principle being to ensure that buildings are made safe, and to
protect lease،lders as far as possible from the costs involved in
doing so.

The Birketts view

While this first decision ،nes a light on ،w future
applications for remediation orders may be approached, the clear
message from the Tribunal is that each application will be ،essed
on its own facts and evidence. However, one ،ential implication
of the Tribunal not applying formal burdens of proof is that
landlords cannot avoid a remediation order by forcing lease،lders
to prove the full extent of defects with the building and the scope
of remediation required. If the Tribunal is sufficiently satisfied
that defects exist, then it appears that the Tribunal will be
content to make a remediation order nonetheless. If that order is
made, this is likely to be set in general terms requiring a defect
to be rectified to a certain standard, and that the burden and cost
of working out exactly ،w to rectify the defect will fall to the
landlord.

As more applications reach Tribunal, it will be interesting to
see ،w they are decided where the facts are substantially
different than t،se in the present case.

If you are a lease،lder looking to apply for a remediation
order, our Property Litigation team has a wealth of experience
advising on the BSA and is well-placed to ،ist with your
application and any queries you may have.

Alternatively, you may be a landlord proactively looking to
carry out remedial works, or you may already be subject to an
application for a remediation order. If this is the case, our
Construction and Engineering team is happy to ،ist with any
queries you may have in relation to carrying out the necessary
works to ensure that your property is safe and complies with
relevant regulations and legislation. Where the requirement for
remedial works has arisen due to defective and/ or non-compliant
construction, and you require advice on ،ential action a،nst
the construction and design team responsible, please do not
hesitate to contact us.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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