Leaseholder exclusion against costs of Cladding Remediation Works determined at Appeal

The Upper Tribunal has confirmed that leaseholders holding 'qualifying leases' for the purposes of the Building Safety Act 2022 (BSA) have protection against the cost of all cladding remediation work – even if outside the scope of being a 'relevant defect' defined the BSA.

The challenge at Appeal

The BSA states no service charge is payable under a qualifying lease in respect of cladding remediation but makes no reference to "relevant defects" as defined by the BSA. The Upper Tribunal said that the question to be asked is: whether the BSA service charge provision in fact applies to defective cladding which is not also a “relevant defect” and if so, were the works that were being proposed to the façade “cladding remediation” within the ambit of the BSA's service charge exclusion?

Cladding remediation

Cladding remediation is said to mean the removal or replacement of any part of a cladding system that forms the outer wall of an external wall system and is “unsafe”. ‘Unsafe’ meaning something more than simply out of repair. It is sufficiently wide a term to encompass a range of threats to the safety of the building or to its residents or nearby members of the public.

The Upper Tribunal determined that there was no justification for limiting the ambit of the service charge exclusion; the definition of “relevant defect” included a number of conditions which relate to works done or not done and which result in a “building safety risk”. Those restrictions had not been applied to the BSA service charge exclusion and the word “unsafe” would be given its ordinary and natural meaning within this context.

For further details on the case at first instance, please refer to our previous blog What is 'good and substantial repair and condition' in the context of defective cladding? which first appeared in The Expert Witness Journal August edition.

The law surrounding building fire safety in England is complex and evolving. If you are a landlord, developer, or leaseholder dealing with these issues, or if you have any concerns about how this decision may affect you or your business, please do not hesitate to get in touch with our Real Estate Disputes Team or, your usual Brodies contact.

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