Q: I have a question about certain costs which have been passed to our service charge by our freeholder.
Our development opened in 2013. Every 12 months since then a fire safety review has been performed by a private company. As a result of these assessments a number of recommendations have been made due to non-compliance with fire safety regs. The works to resolve these have cost thousands of pounds.
I have consulted a leading fire safety organisation. They advised that there have been no changes to relevant fire safety regs since 2012. So my question is this: can a developer open a development and sell flats if all fire safety regs are not signed off? If they are allowed to do this, then are they legally allowed to then pass on the costs of meeting fire safety regs to leaseholders?
FPRA Chairman Bob Smytherman replies:
Fire Safety is very much a topical issue and has featured regularly in our newsletter to assist members understand and fulfil their responsibilities. All these are available to view on our members website going back many years.
The legislation you refer to in your question is the Regulatory Reform (Fire Safety) Order 2005 which places a responsibility on the ‘responsible person/s’ to maintain fire safety standards for the common areas of the block of flats not the flats themselves. This is likely to be the managing agent on behalf of the Freeholder.
Since Grenfell last year there has been a number of reviews instigated and all ongoing which I contribute to on behalf of the FPRA therefore there may be changes to these legal requirements in future including improvements to Fire Safety that may (and I stress MAY) be able to be passed on to service charge payers. Indeed, this has been in the news with a large developer passing on the cost of replacement cladding to the service charge as a result of this block failing tests following Grenfell.
Your own lease is important here as to what improvements can be passed to the service charge or not and we will need to refer your lease to our legal advisor for a definitive legal view in this situation.
My own view is your freeholder is entitled and expected to carry out a fire safety review at least on an annual basis. However, I would be surprised if this resulted significant additional measures required in such a new block as its rare for significant new risks to be identified that require new expenditure to deal with non-compliance, I suggest challenging the recommendations to satisfy yourselves these are new risks that need mitigating to assist you with this I suggest independently contacting your local Fire Service who will be able to advise whether any such recommendations are both reasonable and proportionate and then contacting your managing agent with your findings to enter in to a discussion about the reasonableness of any costs, ultimately if you can’t agree on the reasonableness of costs added to the service charge then as Leaseholders you can seek a determination from the First Tier Tribunal
Question submitted February 2018