As described in the recent First Tier Tribunal (FTT) decision in Almacantar Centre Point v Various Leaseholders at Centre Point House, there is voluminous caselaw going back decades as to the extent of a tenant's obligations to (put and) keep something in ‘good and substantial repair and condition’. The obligation goes beyond mere repair, and may, if the circumstances require, result in something better being put in place. In this FTT decision (England), the "put and keep" standard is explored within the context of defective cladding; as well as a more challenging issue about building & fire safety regarding whether cladding is to have been put onto a building within the past 30 years in order for the Building Safety Act 2022 (Act), to bite.
Background
Centre Point House (CPH) is a 6-storey building, containing 36 duplex flats, which were originally converted in 1987. A dispute arose relating to the replacement of the cladding on CPH and whether the service charge provision in the tenants' long leases, permitted the landlord to recover the costs from tenants of its proposed remedial works. If it did, then: 1) was the façade on CPH in fact 'cladding' within the meaning of the Act? And if it was, then, 2) Did any of the leaseholders qualify for protection under the Act, meaning they would be exempt from paying towards the costs of the works?
What is cladding?
It is generally accepted that there is no universal definition of a ‘cladding system’ or indeed ‘cladding’ in the construction industry, and some of the definitions and guidance contradict each other. The Oxford Dictionary of Construction, Surveying and Civil Engineering states that cladding is:
“the non-load-bearing external envelope or skin of a building that provides shelter from the elements. It is designed to carry its own weight plus the loads imposed on it by snow, wind and during maintenance. It is most commonly used in conjunction with a structural framework.”
At CPH, however, the landlord's proposal incorporated an external walling system, which was to comprise glazing and intermediate spandrel panels that combine to form the external wall itself. Thermal and weather resistance, fire stopping and visual appearance were being brought together as a unified system. That would, it was said, put into good condition and substantial repair the CPH façade, and eliminate continuing effects of the inherent defects. It would also, as a side effect, improve the thermal properties of the design.
The FTT said that where the system was a composite one such as here, the outer part of the external wall system must in fact extend to all parts of that system. The external façade of CPH was therefore, ‘cladding’ in the generic sense but, the Act contained its own definitions and the FTT provided further analysis on the point. Turning to explanatory notes for the Act, the FTT said the note appeared to support an analysis that cladding can be the outer part of the external wall system itself, and is not limited to a separate additional wall, skin or layer fixed on the external wall system.
Was the cladding in disrepair?
In the leases, the landlord had the obligation to keep the retained parts of CPH in good and substantial repair and condition. An obligation to ‘keep...in good and substantial repair and condition’ is also an obligation to ‘put’ the retained parts in good and substantial repair and condition, if the retained parts are not in that condition (Saner v Bilton (1877- 78) LR 7 Ch.D 815). The leaseholders had the obligation to pay a fair proportion of the service charges for those works that fall within the landlord's obligations.
On the expert evidence, the cladding was said to not be in good and substantial repair and condition, it had been inherently defective from the date it was completed (i.e. 1987), and its physical condition had deteriorated over time as a consequence.
What is the 30-year rule and does it apply to defective cladding?
Only ordinary and clear meaning to the words of the Act would be given. As a result, cladding remediation is to be treated as a distinct, standalone, protection under the Act. This right is not contingent on there being a defined ‘relevant defect’ in connection with works and which causes a building safety risk (as required elsewhere within the Act). The result is that there is no requirement that cladding needs to have been put on the building within the 30 years preceding 14 February 2022.
Perhaps unsurprisingly, this decision is the subject of an appeal. We will provide an update as the appeal progresses and a decision has been reached.
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.
For more of our industry insights on the impact of the Act right across the built environment, please visit our Building and Fire Safety Hub
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