Combustible Cladding Issues – Homeowners’ Rights Explained
Ever since the Grenfell tragedy brought the dangers of combustible ACM cladding to public attention, many homeowners with this kind of cladding on their building have been living in limbo.
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Exactly who is responsible for the cost of replacing combustible cladding is often a matter of dispute, with the default position of many management companies and freeholders being that leaseholders should foot the bill. This has left many leaseholders facing huge costs to fix a problem that they, understandably, feel should not be their responsibility to put right.
The good news for leaseholders in this position is that there are various options you can explore that may allow you to avoid some or all of the cost of replacing dangerous cladding and/or recover any losses you have suffered.
In this guide, we will cover:
- Common cladding issues for leaseholders
- How to find out if your building has combustible cladding
- Who is liable for the cost of replacing combustible cladding?
- How the government’s cladding scheme works
- Your legal options for challenging combustible cladding issues
- Our methods for resolving combustible cladding disputes
- Why IBB are the right choice for dealing with combustible cladding issues
Looking for immediate advice on your combustible cladding issue?
Our Property Litigation team would be happy to hear from you. We can provide swift advice on your rights and legal options, then provide effective support to help you take action.
To discuss your situation with our friendly, proactive team, you can call us on 01895 201759 or contact us via the enquiry form at the top of this page.
Meet the team
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- Sonia Ali
- Associate
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- Jon Mowbray
- Partner, Head of Real Estate
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- Ava Bridgwater
- Trainee Solicitor
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- Maryam Dean
- Trainee Solicitor
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Common cladding issues for leaseholders
Leaseholders of properties with combustible cladding can potentially find themselves facing a range of issues, including:
It is a common condition of leases that the leaseholder is responsible for some or all of the cost of repairs. This will normally be funded through service charges, taken out of a sinking fund or there may be provision in the lease for one-off additional charges.
Many tenants in properties with unsafe cladding have found that they are being held liable for the cost of replacement, with individual leaseholders facing bills of tens of thousands of pounds each to make their properties safe.
Find out about your right to reclaim the cost of replacing combustible cladding.
To keep residents safe until Grenfell-style cladding can be removed, management companies are putting in place enhanced safety measures, including expensive fire suppression systems and regular patrols of affected buildings.
Typically, residents are being compelled to cover the cost of these additional fire safety precautions, which can be very high and will continue until such time as the dangerous cladding is replaced.
Find out about your right to reclaim the cost of enhanced fire safety measures.
In many cases, residents are having difficulty getting a developer or freeholder to carry out the necessary works to remove and replace combustible cladding.
Find out about how you can compel a developer or freeholder to replace combustible cladding.
How to find out if your building has combustible cladding
The first step is usually to get an expert report from an architect and/or fire safety engineer. This will help you to determine whether the cladding on your building is dangerous, what work is needed to fix it and whether the work to install the cladding was done in breach of building regulations.
In our experience, one of the biggest delays for tenants in being able to take action over unsafe cladding is waiting for an expert report to be completed. It is therefore important to get the ball rolling on this as soon as possible.
Who is liable for the cost of replacing combustible cladding?
This is usually the question that causes homeowners the most stress and anxiety. Unfortunately, the answer is often not straightforward.
The fire safety of residential blocks of flats is governed by three main pieces of legislation:
- The Housing Act 2014
- The Regulatory Reform (Fire Safety) Order 2005 (RRO)
- The Building Regulations 2010
The general principle is that the landlord/freeholder is responsible for the fire safety of the overall building, the management company for common areas and the leaseholders for the interior of their flats and the common areas.
What this means is that all of these parties will normally have some degree of responsibility for contributing to the cost of replacing combustible cladding. However, exactly what each party’s degree of liability is will depend on the circumstances, as will their options for recovering this cost from other parties, such as a developer.
An important point to understand is that, even if the landlord is responsible, leaseholders may still be liable for all or part of their costs in having the cladding replaced. This is because these costs can potentially be recovered by the landlord through the tenants’ service charges under the terms of their lease.
Given the complexity of these matters, it really is essential to seek specialist legal advice as soon as possible.
How the government’s cladding scheme works
The government has created a £5 billion fund to help cover the cost of replacing combustible cladding on residential high rise buildings over 18 metres tall. This fund is intended to provide grants to pay for the remedial work required.
While this is clearly positive for those who are able to access the funds, there are two main issues with the fund.
Firstly, the fund will not help those in buildings under 18 metres tall that have unsafe cladding that needs to be replaced. This leaves potentially thousands of properties affected by unsafe cladding unable to claim.
Secondly, MPs have estimated that the total cost of remedying all of the fire safety issues identified in residential buildings in the wake of the Grenfell tragedy could cost £15 billion. This means there could be a £10 billion shortfall in the amount needed to cover the work required – a shortfall that may need to be covered by leaseholders.
For those in buildings with unsafe cladding that are between 11 and 18 metres, the government is offering an alternative solution in the form of long-term, low interest loans. These loans can cover the cost of replacing combustible cladding but will ultimately need to be repaid by leaseholders.
Your legal options for challenging combustible cladding issues
Depending on your circumstances, there are various actions you may be able to take to deal with your combustible cladding issues. IBB Law can help with all of these approaches, as well as providing assistance with any other legal matters arising from unsafe cladding. We will be happy to advise on:
You may potentially have grounds for a breach of contract claim in relation to a statutory breach of the Defective Premises Act 1972. This could see the person who sold the property having to compensate you for any losses you have suffered, including the cost of replacing unsafe cladding.
Where a freeholder or management company is failing to take action to replace combustible cladding, it may be necessary to seek a legal injunction to force them to do so. This involves applying to a court and is often done by a group of leaseholders working together in a group action.
If an injunction is granted, the court will effectively be ordering the relevant party to carry out replacement of the unsafe cladding and they will be committing an offence if they fail to do so.
Your landlord’s right to recover the cost of essential works through service charges will be covered in the terms of your lease. However, these costs must be reasonable and you do not have to pay for anything that is not included in your lease.
If you believe you landlord has charged you in a way that is not compatible with the terms of your lease, you may be able to raise a dispute and avoid paying those charges or have any unfair services charges you have already paid returned.
Our methods for resolving combustible cladding disputes
We take a flexible approach to resolving combustible cladding disputes, with our goal being to get the best possible outcome for you as quickly and cost-effectively as we can while minimising any stress and uncertainty. We offer various options and will always tailor our approach to your priorities and concerns, as well as what approach we feel is most appropriate to the circumstances. Our combustible cladding solicitors can assist with:
Many disputes can be resolved through private negotiation between the parties. This is often to everyone’s advantage as it can be the fastest, most cost-effective way to resolve a dispute. It also has the advantage of keeping the details of the dispute and any settlement agreed private.
This is a popular option for many types of property disputes where the parties meet with a trained neutral mediator to talk through the details of their dispute and agree a solution. The benefit of this approach is that the parties keep control of the process while having the mediator there to ensure discussions stay productive and to avoid unnecessary conflict.
Find out more about our mediation service.
Where the parties cannot agree a resolution but are keen to avoid court proceedings, arbitration can be the ideal solution. This involves the parties agreeing to let an independent third party act as an arbitrator to review the facts of the case, listen to submissions from each side and decide how the matter should be resolved.
Arbitration must be carried out by a trained arbitrator, who will usually be a solicitor. It can be a must faster and less costly way of resolving a deadlocked dispute and is also carried out in private, avoiding the publicity of court proceedings.
Where a dispute is unlikely to be resolved through alternative methods, court proceedings may be the best option. While this will typically take longer and cost more in legal fees than an out of court settlement, it can avoid the need to compromise on what you believe to be the right outcome if the other party is not willing to reach a fair settlement.
If you do decide to pursue court proceedings, this can often be done with other affected leaseholders in a group action, which can help you to spread your costs and allow everyone to get a decision faster than if you all pursue individual actions.
Why IBB are the right choice for dealing with combustible cladding issues
Our Property Disputes team have extensive experience with the most high value and complex disputes, including those related to combustible cladding. As such, we can provide realistic and practical advice on your legal position and your options.
IBB Law’s exceptional legal expertise has been recognised by leading client guides Chambers & Partners and the Legal 500 as following:
- Chambers & Partners – Band 1 ranking in Construction Law and Real Estate Litigation
- The Legal 500 – Tier 1 ranking in Construction and Tier 2 ranking for Property Litigation
We have an excellent track record of securing maximum compensation for our clients, typically without the need for court proceedings. However, we have experience of representing clients at all levels of the English court system, with the fierce litigation skills to ensure our clients achieve the best available outcome every time.
Get clear, proactive legal support for combustible cladding issues
If you need advice on a combustible cladding issue or want expert help to take action, our Property Litigation team are on hand to provide straightforward legal guidance and robust representation for your interests.
To discuss your situation with our friendly, proactive team, you can call us on 01895 201759 or contact us via the enquiry form at the top of this page.
Please note: our legal team are unable to provide legal advice without charge. We will provide you with a pricing proposal at the outset and we usually require monies on account before commencing work.
