Radcliffe Investment Properties Ltd v Meeson [2023] UKUT 209 (LC)
In this Upper Tribunal appeal, the landlord sought to challenge the First-Tier Tribunal's decision that it was unable to recover the cost of a waking watch from leaseholders where that cost arose out of its own failure to carry out, or update, necessary fire risk assessments.
Facts
The property in question was a former office building, converted by the previous owner to provide 96 residential flats. Before the conversion work had been completed, and before the current landlord acquired the property, a fire risk assessment was carried out which found, among other things, that there was a risk of "moderate harm" in the event of a fire.
The landlord took no further steps to review the fire risk assessment. In May 2019, a leak onto the fire alarm control panel triggered the attendance of the Fire Service who expressed a number of concerns over the building, including multiple failings in fire compartmentation. The fire officer advised that a waking watch be implemented immediately at a total resultant cost to leaseholders of £57,894. Factually, the First Tier Tribunal had been satisfied that the waking watch costs were "attributable to the acts and omissions of the landlord... in relation to fire risk assessment". In other words, had the landlord undertaken the fire risk assessment in a timely manner and undertaken necessary remedial works, the waking watch would not have been necessary.
Decision
The parties both accepted that the waking watch was required, and that for the service provided, the cost was reasonable and a recoverable service under the lease. The question for the Upper Tribunal was therefore simple. Did the landlord's failure to review or carry out a further fire risk assessment (in breach of article 9 of the Fire Safety Order) render the costs of the waking watch unreasonable and therefore irrecoverable? Upholding the First Tier Tribunal's decision, the Upper Tribunal found that the cost was indeed irrecoverable.
Comment
Given the renewed focus on fire safety following the introduction of the Building Safety Act 2022, it is difficult to see a landlord taking a similarly cavalier approach to fire risk assessment today. However, if needed, this case serves as a further reminder of the importance of properly considering and updating fire risk assessments, particularly on an acquisition, and the implications of failing to do so. Interestingly, this case was brought before the introduction of the Building Safety Act 2022, which was not considered in this case.
This case also raises an important question of whether a failure to comply with statutory requirements can limit service charge recovery more generally. It is perhaps rare however that the costs of works will be so clearly attributable to a statutory failing by the landlord and so the wider impact may be more limited.
The FTT was entitled to conclude that the costs of the waking watch were not payable by the leaseholders... The cost of the necessary remedial work to put right the fire safety defects was increased by the cost of the waking watch, but that increase was wholly avoidable. If the landlord had been aware of the need to put right the defects in compartmentation and the inadequate fire protection for the lift, as it would have been if it had commissioned an up-to-date fire risk assessment when it should have done, the cost of the necessary works would not have been increased by the cost of the waking watch... As a result, the disputed cost was not payable under the Lease and the section 19(1) cap did not take effect. The appeal is therefore dismissed.
unknownx500
