Building Safety: First Remediation Order made

A group of leaseholders of two connected blocks of flats have successfully applied for a remediation order against the landlord in respect of defective external cladding and other fire safety issues.

The decision by the First-tier Tribunal Property Chamber (Residential Property) in Sarah White & Karin Ida Christina Martensson & Other leaseholders v Kedai Limited (freeholder) LON/00AY/HYI/2022/0005 & 0016 is the first remediation order made under section 123 of the Building Safety Act 2022 (BSA).

The Tribunal confirmed the question is whether the work creates a building safety risk at the date of the hearing in the light of today’s knowledge of building materials and processes. It ordered that the remedial works must comply with Building Regulations applicable at the time the remedial works are carried out. 

It did not have jurisdiction to determine whether the costs of the works were payable by leaseholders under the service charge. However, the landlord (Kedai) indicated it would not seek to recover costs as it was prohibited from doing so by paragraph 2 of Schedule 8 to the BSA given that it was responsible for the defects.

In relation to the cost of the proceedings, the Tribunal held that it is a “no costs” jurisdiction, save where a party has acted unreasonably in the conduct of proceedings and that had not been the case here. It did however make an order under section 20C of the Landlord and Tenant Act 1985 that 80% of Kedai’s cost of the proceedings should not be passed on to non-qualifying leaseholders through the service charge. The qualifying leaseholders were protected against payment of any costs by reason of paragraph 9 of Schedule 8 to the BSA.

The Tribunal’s decision provides well-reasoned and useful guidance about remediation orders. It remains to be seen whether the decision will embolden more leaseholders into applying or whether they will be put off by the cost. 

Find out more in our First Remediation Order under Building Safety Act article.

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