QUESTION
We are faced with the situation in many of our blocks, where the flat doors do not comply with the fire safety regulations, ie they are not fire doors (FD30); they do not have hydraulic door closers, 3 butt hinges, intumescent door strips or cold smoke seals. In many instances, letterboxes and/or spyholes have been cut into the door.
The Landlord’s obligation is obviously to ensure the main escape routes are protected but that is not possible if the flat doors are not compliant. However, in most leases, the flat doors are part of the leaseholder’s demise and the Landlord doesn’t have the ability to carry out the work and the costs to be recovered from the leaseholders. This is also despite almost every Fire Risk Assessment stipulating that the doors must be changed if not compliant. Up to now the only way to resolve this muddle, was to write to the leaseholders and ask them to replace the door according to the required specification. These requests are rarely accommodated, so the situation remains largely unchanged and a potential risk to residents.
So there is an inherent discrepancy between the two opposing forces.
In light of the Grenfell Tower disaster, and the fact that it was smoke that killed most of the victims, what is the official view now about whether the Landlord can get these works done?
ANSWER
There have been a couple of recent cases that might assist here, but unfortunately, the position is still not entirely clear and will come down to the facts of each individual matter.
Southwark LBC v Various Lessees of the St Saviours Estate [2017] UKUT 10 (LC) dealt specifically with fire doors that were not FD30 compliant (albeit in the context of reasonableness of service charges). The key question that the tribunal in that case identified was whether the fire doors were actually in disrepair. In that case there was no evidence of disrepair and as such the obligation to “repair” was not invoked. It follows therefore that if the doors are not in disrepair (that being, a state worse than their previous state) the repairing covenants will not be triggered. If the landlord is responsible, they will be unable to recover the cost as a service charge; if the leaseholder, they could not be obliged to replace the door. The fact that they are not FD30 doors is unlikely to matter in the context of disrepair unless they were previously FD30 compliant but have fallen into a state worse than that.
The recent case of E&J Ground Rents NO. 11 LLP v Various Leaseholders potentially assists. The (first-tier) tribunal held that the cost of a waking watch was recoverable as a service charge owing to the landlord being obliged pursuant to the lease to comply with the “requirements and directions of any competent authority”. The individual leases should be reviewed but assuming they require similar compliance, then I see no reason why the decision in the E&J case would not assist with other fire-safety works including replacement doors. It should be noted however that any such obligation will only be triggered where a “competent authority” directs the landlord/management company to take action. In E&J the local Fire Service made a Fire Safety Order and Action plan. Without any such order it may be difficult to justify the works.
Following on from that and where the leaseholders own the doors, it might be possible to invoke the leaseholders’ obligation not to invalidate the building insurance (which most leases have provision in respect of). If the insurance policy requires a landlord to maintain the block to current fire safety standards or similar, it might be possible to argue that by not replacing their doors, the leaseholders are in breach of their covenants as to compliance or invalidation of insurance. You would then be required to take the usual enforcement action (via a tribunal pursuant to s.168 Commonhold and Leasehold Reform Act 2002) and ultimately, forfeiture. It is then probable that a court would grant relief from forfeiture on the basis that the door is replaced.
In the absence of the above provisions or circumstances, if the leaseholder’s own their own door all you can do is ask that each leaseholder takes steps to make it compliant and hope that this can be agreed. If the landlord owns the doors and none of the above applies, then if they choose to replace them, it would be at their own cost.
Sarah Goodall, Solicitor at Bolt Burdon
