Whose door is it anyway?!
20th June 2023
20th June 2023
This week’s legal update focuses upon a topic that we are regularly being asked about and that concerns the ability of those who manage buildings, such as Landlords, Management Companies and those that have acquired the Right to Manage, to compel leaseholders to alter the front door of their flat to make them fire safety compliant. The other side of the question that also arises is whether the replacement of the front door is the duty of the Landlord/Management Company and, if so, how should that project be funded.
This situation often causes a problem because generally the flat front door may not be in disrepair and, save for it not being fire safety compliant, it is otherwise in good condition.
The Statutory Rules
Under the Regulatory Reform (Fire Safety) Order 2005 (“the FSO”), legislation was introduced in relation to fire safety that would apply to all workplaces and the common parts of buildings containing two or more domestic premises. The FSO places a legal duty on anyone in control of premises, known as the ‘Responsible Person’, to undertake a fire risk assessment and to put in place and maintain general fire precautions.
The Responsible Person is the party with control over the premises. So, this can be a Landlord, Management Company or RTM Company. In other words, those undertaking the management functions under the lease.
Responsibilities can also extend in certain circumstances to those known as Duty Holders who are those that retain some responsibility under the FSO such as managing agents.
Upon the introduction of the Fire Safety Act 2021 (FSA), it was clarified that the external walls, the structure of the building and, for present purposes, flat entrance doors must be accounted for within fire risk assessments.
Since 23 January 2023, following the introduction of the Building Safety Act 2022 (BSA), the Fire Safety (England) Regulations 2022 made it a legal requirement for responsible persons of multi-occupied residential buildings in England with storeys over 11 metres in height to:
Undertake quarterly checks on all fire doors (including self-closing devices) in common parts; and
Undertake, on a ‘best endeavours' basis, annual checks of all flat entrance doors (including self-closing devices) that lead into a building’s common parts.
It is obvious that the use of closed fire doors assists in slowing the escape of fire and hence the need to undertake the checks now required.
When a potential fire safety issue has been identified within a fire risk assessment, action needs to be contemplated which may include the recommendation that a flat front door is replaced with one of a fire compliant nature. Ensuring that the replacement of a flat entrance door goes ahead, is not necessarily a straightforward task, but the actions below, ought to be considered in order to assist doing so.
Whose door is it anyway?
Whilst the answer to this question might appear to be obvious, the lease always has to be considered in the first instance in order to establish actual ownership and liability for repairs to the front entrance door to the flat.
Most modern leases will set out, usually in the recitals at the start of the lease or within the schedules towards the rear, what elements of the flat are included (demised) and where certain parts are excluded. Modern leases tend to be quite specific in terms of expressly specifying what is and isn’t included in the demise of a flat, usually making reference to whether the flat entrance door is demised and if so, which elements of it, such as the whole thing or just the internal and/or external surfaces.
However, certainly with older leases, the position is often not necessarily so straightforward. Some leases will simply identify the demise of a flat with reference to the red delineation on an annexed plan. The red delineation will often be inaccurate and hand-drawn with no further references in the lease as to ownership or responsibility for doors or windows etc. Whilst in most cases responsibility for maintenance is directly linked to ownership, it cannot be assumed that that is the case and the extent of the repairing obligations in the lease must be considered as well as the extent of the premises demised.
The Landlord’s responsibility and recovering the cost of fulfilling that
Assuming that the responsibility for the flat door falls upon the Landlord, Management Company or RTM Company under the lease, consideration then needs to be given to whether or not the cost of the replacement door can be recovered under the service charge. It should not be assumed that just because there is a need for this work to be undertaken by the Landlord/Management Company and that work is to the building or part thereof, that that cost can lawfully be paid for using service charge or reserve fund monies.
Where the repairing covenant is not triggered (e.g. because the door is not in ‘disrepair’, just not fire compliant), careful thought needs to be given here in terms of whether or not the replacement of the flat front door, that is otherwise in good condition, could be considered a repair or perhaps an improvement.
Whilst each lease will turn on its own construction, the costs incurred in undertaking improvements are often not a lawful service charge expense. However, it is common to find within leases that the costs incurred in complying with “statutory requirements”, which would encompass those required by the relevant fire and building safety Acts, can be recovered from service charge funds.
However, the wording of the specific repairing covenant in the lease needs to be considered as all leases and the repairing covenants will differ. For example, many leases oblige the party, here we are referring to the Landlord, Management Company or RTM Company, to keep the premises or part thereof in “good and substantial condition and repair” etc; something which goes beyond the requirement to just “repair”. In the context of ensuring that fire doors are fire compliant, it is possible that a requirement to keep in good “condition” might extend to keeping something “compliant”, although at present we are unaware of any helpful case law on the point.
Further, most modern leases will contain a “sweeper clause” that allows the recovery of any other (unspecified) items of expenditure incurred by the party responsible for managing the building. Whilst such clauses do not entitle a party to recover whatever expenditure it wants, it may be possible to capture the costs incurred in works necessary to comply with fire safety matters within the building under those general provisions.
A further avenue that might be pursued, if it is present in the relevant lease(s), is the obligation of the Landlord/Management Company to comply with any requirements of the insurer. Whilst we have yet to see, at the date of this article, any instance where an insurer has refused to insure or has increased a premium as a result of non compliant fire doors we suspect that day will come. Were that to occur then consideration of the Landlord’s obligation in that regard should be considered against what the service charge permits as it may be possible to recover through the service charge the costs on that basis.
The Leaseholder’s responsibility
Where none of the above applies because the flat front door is clearly within the demise and thus the property of the leaseholder, how does the Landlord or Management Company oblige the leaseholder to take steps necessary to replace what might appear (certainly to the unwilling leaseholder) to be a perfectly lovely front door with one that is likely less attractive but compliant with fire regulations?
Where a breach of the lease can be established, that breach can be enforced in a number of ways, many of which will possibly see the leaseholder replace the front door, and advice should be sought on what options are available to the client and best suit the individual circumstances of the case. In terms of enforcing compliance, the Landlord/Management Company may be able to rely upon the following covenants in the lease :
The obligation to keep in good condition
Here, the point made above will apply equally to leaseholders if the lease wording includes a requirement for the leaseholder to keep the demise in good repair and “condition”.
The Insurance Covenant
Leases generally contain a covenant that prohibits the leaseholder from doing anything that will either void the building’s insurance or, at the very least, cause an increased insurance premium to be payable. In many cases the lease will place a liability upon the offending leaseholder to pay any additional premium incurred as a result of their breach of this provision.
If, by virtue of a leaseholder failing to ensure that their flat entrance door meets the requirements of those set out in any fire risk assessment, the insurance policy is either voided or results in an increased premium payable upon reporting the issues to the building’s insurance, that may give rise to a breach of lease.
The Statutory Compliance Covenant
Under regulation 17(4) of the FSO, leaseholders (or the occupiers of the flat) are required to cooperate with the Responsible Person for the purposes of their duties in undertaking the fire risk assessment and any subsequent maintenance or repairs.
Under the lease, there can sometimes be found a covenant that requires the leaseholder to comply with any applicable statutes, laws or regulations. By failing to cooperate with the Responsible Person in terms of any fire safety issues, such as by electing not to replace a demised flat front door so that it is fire compliant, this may constitute a breach of lease.
The majority of leases will contain a provision that allows the Landlord, Management Company or RTM Company to introduce regulations to supplement those already present, so long as they are reasonable and are for “the proper management of the building” (or something of similar effect).
Given the legislation, and the importance of it, it may be reasonable to introduce a regulation that specifically requires leaseholders to comply with any recommendations set out within the fire risk assessments.
Whether such regulations would be enforceable by the Courts, if necessary, may be moot. Regulations introduced that result in the need for the leaseholder to incur a cost are often not enforceable. However, that may not be the case where the purpose of that regulation is to ensure compliance with fire safety requirements which, in the current climate, are of the upmost importance, and plainly in the best interests of the building and all occupiers of the same. Again, the expected case law on this approach is going to be a must watch for those who are responsible for residential property.
The community approach
Whilst not always practical, and in larger blocks potentially a logistical nightmare, but where the obligation to replace the door is that of the leaseholder and therefore not a service charge issue, then one route that has, in our experience, seen positive results is this “community” type approach.
That is where one party, often the managing agent, obtains a tender from a trusted contractor for a mass replacement of the front doors with fire compliant alternatives. The price per door is likely to be lower where the contractor is undertaking replacement of many doors at the same time. If the individual leaseholders wish to take up the opportunity of saving some money (and making the flat safer of course!) they will each need to contract with the contractor individually ahead of a set date for participation. Each leaseholder will be liable to the contractor for the cost (the contractor will often require payment from each leaseholder in advance). So long as the leaseholder understands that this is a cost outside of the lease (i.e. not a service charge) and that they are themselves contracting with and liable to the contractor then all should be good.
This community type approach either works well with a majority or unanimous take up or falls flat at an early stage. It appears to work well often in smaller blocks or blocks where the owner occupancy is high.
What if the lease is just unclear on all or any of the above points?
The clear initial answer here is for the relevant party to seek good quality legal advice, be that for a Landlord/Management Company to enforce compliance or for a leaseholder to question if the approach being taken by their Landlord/Management Company is in fact correct.
Statute, in the form of s.35 and s.37 Landlord and Tenant Act 1987, provides two facilities to enable parties to a lease to apply to the First Tier Tribunal (“FTT”) for an order variying a lease or leases to correct an error in drafting or to insert desired new provisions into leases (see here). However, it is not the case that an application under either of these provisions can simply provide you with what you want against the wishes of the other party to the lease, as qualifying criteria applies and, ultimately, the FTT has total discretion on any proposed changes sought by such an application. But these sections may be a way for the relevant party to address a lack of clarity or requirement. Again, quality legal advice should be sought before making any such application.
Before any works are undertaken to any flat entrance door that does not meet the appropriate fire safety standards, liability for the flat front door first needs to be established.
Absent clarity in the lease, it should never be assumed that a flat front door forms part of the demise and is the leaseholders’ responsibility on the basis of that being the obvious conclusion. Nor should it be assumed that the door falls to the Landlord to replace or that the cost of the replacement is a service charge expense.
If in doubt, legal advice should be sought and perhaps that may result in an application to the FTT under s.27A of the Landlord and Tenant Act 1985 in order to establish liability or s.35/37 of the 1987 act for a necessary amendment to the lease (where the qualifying criteria is met).
Even then, once liability is established, enforcing compliance of a leaseholder is not likely to be straightforward. It may well be that, absent the ability to enforce any action under the lease, the Fire Brigade or local authority may be able to serve an appropriate enforcement notice upon the leaseholder for action to be taken.
It is important to add that this article has been produced in June 2023 and represents only the position as at today’s date. The provisions of relevant legislation are still being amended/updated (with new Regulations to the BSA announced only in the last few days) and further charges and additions are absolutely expected as understanding of the issues with implementation of the desired outcomes from the FSO and the BSA grow. To our knowledge, the points set out above are presently untested in higher courts and, given the importance and prevalence of fire safety, case law will be both inevitable and important for those advising Landlords and leaseholders alike. It is therefore most relevant to conclude this article with the inescapable phrase of “watch this space” for further changes as they are coming.
For more information, please feel free to contact a member of the team on 01435 897297 or firstname.lastname@example.org.
This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above. The Legal Update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.
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