First legal action to force remediation of defects

On 9 October DLHUC issued a Press Release announcing that it had written to the freeholder of a Stevenage tower block, identified over two years ago as having unsafe cladding, in the first step to taking legal action.

The freeholder has been given 21 days to commit to remediation of fire safety defects, otherwise DLHUC has said that it will apply for a court order.

The Secretary of State has said that he will also consider applying for a Remediation Contribution Order against other entities associated with the freeholder, requiring them to financially contribute to the remediation costs.

Remediation and Remediation Contribution Orders – who, why, how?

The Building Safety Act (BSA) introduces new sanctions and enforcement routes to compel remediation of buildings which have been identified as having fire safety defects. These include the power for the court to make Remediation Orders, and Remediation Contribution Orders, with the creation of a new Recovery Strategy Unit to pursue those resisting their obligation to remediate.

Under the BSA, “interested persons” can apply for:

• Remediation Orders (s.123 BSA), namely an order “requiring a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time.”
• Remediation contribution orders (s.124 BSA)., namely “an order requiring a specified body corporate or partnership to make payments to a specified person, for the purpose of meeting costs incurred or to be incurred in remedying relevant defects (or specified relevant defects)”

A “relevant building” is one in England that is 11m / 5 storeys or more in height, and which contains two or more dwellings; and a “relevant defect” is one which causes “building safety risks” (being the risk to the safety of people in or about the building due to the spread of fire or the collapse of the building or a part of it).

An “interested person” includes the Secretary of State, the regulator, the local fire service, local authorities and/or anyone with a legal or equitable interest in the building.

Remediation orders can be made against “relevant landlords”, which the Act defines as “a landlord under a lease of the building or any part of it who is required under the lease, or by virtue of an enactment, to repair or maintain anything relating to the relevant defect”. The section also makes clear that for this purpose “landlord” can include the property management organisation under the lease that holds the repair obligation. Given this, entities who may fall within the definition could include the freeholder, a superior landlord, or a property manager – the crucial test will be who has a relevant repairing obligation either under the lease or by statute.

“Remediation contribution orders” can be made against (i) a current landlord of a relevant building (or one who was a landlord as at 14 February 2022) (ii) the original developer of the building, and/or (iii) partnerships or body corporates “associated” with the landlord or the developer. The Act sets out various tests under which a partnership or body corporate is “associated” with the original body for this purpose, but by way of an example, a company will be associated with the original company if (i) within the 5 years preceding 14 February 2022 they had a common director, or (ii) as at 14 February 2022, one of them controlled the other, or a third party controlled both of them (with “control” being further defined in the Act).

The process to obtain either type of Order (beyond writing a letter before action giving a time limit for the recalcitrant party to commit to works, as DLHUC has done to the owners of the Stevenage property) is to apply to the Property Chamber of the First-tier Tribunal. Any Order not complied with, e.g. if the defects are not then fixed in accordance with its terms, will then be enforceable by the county court (which might potentially result in proceedings for contempt of court if the Order is not complied with, which could accordingly lead to a conviction and/or fine).

Protections for leaseholders, and ensuring that remediation works are done without delay and without cost to leaseholders, are at the heart of the new building safety regime. This Press Release is a clear indication that DLHUC will make use of the powers granted by the Building Safety Act to compel remediation works.