Fire safety, lease variations and remedies under the Building Safety Act

On 3 August 2023, the First-tier Tribunal (Property Chamber), in Western Beach Apartments v Leaseholders, ordered the variation of leases under section 35 of the Landlord and Tenant Act 1987 (“the 1987 Act”), in respect of 119 flats at Western Beach Apartments, 36 Hanover Avenue, London E16, a substantial residential development on the site of the Royal Docks.

In this article, property litigation partner Greg Barnbrook and barrister at Tanfield Chambers Robert Bowker explain the Tribunal’s decision to order the variation of leases and outline what this will mean for landlords going forward, particularly where fire safety issues are being considered or litigated.

Section 35 lease variation

Section 35 of the 1987 Act enables a party to apply for a variation of a lease, or leases, in circumstances where the lease fails to make satisfactory provision with respect to certain matters.

The issues

The building in question requires extensive remediation work to remove combustible cladding and balconies with stacked timber decking, work that the developer is expected to carry out.

The applicant, a tenant-owned head-lessee, originally made three applications with regard to the cost of balcony remediation:

1. under section 27A of the Landlord and Tenant Act 1985 for a determination of the payability and reasonableness of the cost of the balcony works;
2. for dispensation under section 20ZA; and
3. for variation under the 1987 Act.

Variation application

The variation application was necessary because, as the applicant contended, the lease failed to make satisfactory provision for the repair and maintenance of the balconies. A group of leaseholders opposed significant aspects of the applications. Given the possibility of opposition, the applicant chose to make its variation application under section 35 rather than section 37. Under section 37, where the application is in respect of more than eight leases, it must not be opposed for any reason by more than 10% of the total number of the parties concerned and have at least 75% of that number consent to it.

Opposition to the applications meant the proceedings required several hearings and spanned two years.

When the applications were made, the Building Safety Act 2022 (BSA) was not in force. It changed the complexion of the section 27A and section 20ZA applications but not the position of the variation application.

Tribunal’s decision

The Tribunal agreed with the applicant that the leases failed to make satisfactory provision and required variation of the leases for the following reasons:

• Having regard to the way in which the building and balconies were constructed, the lease failed to make a clear distinction between which parts are the responsibility of the landlord and which parts are the responsibility of the leaseholders.
• The design of the balconies meant that a failure to remediate or maintain one balcony could have an effect on other flats or the structure or common parts of the building.
• Where maintenance and repairing obligations for the balconies are split between the landlord and the individual leaseholder, the arrangement is impractical and unsatisfactory.
• Although the balconies are demised to the flat, varying the lease to make it clear that it is the landlord’s obligation to repair and maintain the balcony will lead to consistency in management, maintenance and safety.
• It will enable the landlord to recover the costs incurred in carrying out works to the balcony and to have the necessary access through the flats to undertake works of repair and maintenance.

Going forward 

Variations were not sought simply to address issues of access, maintenance and repair for the purpose of the imminent fire safety works (which the BSA itself is designed to facilitate) but for the duration of the leases (200 years less a day) to enable the landlord to have control for the purpose of more routine work.

But, in respect of specific interaction with the BSA, the determination and the variation ordered make it clear that:

• In the event that the landlord needs to bring fresh applications in respect of the same or similar subject matter, the withdrawal of the section 27A and 20ZA applications would not prevent subsequent proceedings (thereby avoiding any arguments that revisiting those issues would be an abuse of process);
• It is without prejudice to the landlord’s contention that it might be necessary to issue an application against the developer for a remediation contribution order under section 124 of the BSA.

Questions regarding access, repair and maintenance have finally been resolved. But it remains to be seen whether if, for whatever reason, the developer does not cover in full the cost of the cladding and balcony remediation work, an application for a remediation contribution order will be necessary.

The case also serves as a helpful reminder to building managers and their advisors to ask whether leases require variations that will ensure the smooth running and maintenance of their blocks after large-scale fire safety works have been carried out.

The application was heard by the President of the First-tier Tribunal (Property Chamber), Judge Siobhan McGrath, and Mrs Helen Bowers MRICS, and adds to the growing body of Tribunal cases related to the BSA.

Greg Barnbrook and Robert Bowker represented the landlord in this case (LON/00BB/LVL/2021/0008).

If you have questions about the Building Safety Act, please contact Greg Barnbrook.