Government funding to remove unsafe cladding: good news or ‘no less the wiser’?

Patrick Kershaw, Associate in the Russell-Cooke Solicitors, property litigation team.
Patrick Kershaw
3 min Read

The Government announced £5 billion in funding last month to assist freeholders and landlords with removing unsafe cladding of the kind which had such horrific consequences for the residents of Grenfell Tower.

There were many, however, who were left unsatisfied by the gaps in that funding pledge. The funding is only available to buildings above 18 metres and only applies to the removal of cladding. Despite the risks, other fire safety defects and buildings under 18 metres are not eligible. This has left many leaseholders facing not only huge costs to rectify these issues but unable to sell their property.

Following from housebuilder Persimmon's pledge to set aside £75 million to address unsafe cladding on 26 of its buildings, Taylor Wimpey has made its own spending pledge to pay £125 million to rectify cladding and other fire-safety defects for any of their own buildings built in the last 20 years – including those blocks under 18 metres. Whether this money is sufficient to rectify all the buildings Taylor Wimpey has identified remains to be seen, anyone who has undertaken even a small construction project will be aware of how costs can spiral.

So what does this mean for the freeholders, leaseholders and developers still unsure, or actively arguing, over the liability for these very substantial costs? In short - no less the wiser.

While this will be good news for those living in a Taylor Wimpey block – particularly as they propose to rectify all defects to all blocks, not just dangerously clad high-rises, the issue remains very much unresolved for thousands of landlords, developers and leaseholders up and down the UK.

Housing Secretary, Robert Jenrick, is reported as saying that Taylor Wimpey's announcement is the responsible approach that I expect developers across the country to take and I'm calling on others to do the right thing as well.

Expressions of hope that all developers will be in the financial position to follow the example of these hugely profitable companies will be of little assistance to individuals and the wider housing sector still struggling to deal with the fundamental problems that the Grenfell Tower Fire and the ensuing Inquiry has exposed.

While the Government's announcement of further funding was welcome, there will be many who view it as a missed opportunity to legislate for a fair mechanism of redress and offer much needed legal clarity.

So what should those left in limbo do if a fire-safety defect has emerged?

  • Identify who may be liable. Check when construction of the building was completed and whether the contractors' liability has expired. The standard limitation period for a breach of contract is 6 years. If it was executed as a deed the limitation period is extended to 12 years. Depending on the project, a longer liability period may have been agreed with the contractors or design and build team.
  • Even if works took place within the limitation period that may not be the end of the story, particularly if the relevant Building Regulations were complied with at the time and this was signed off by Building Control.
  • Some repairs may be covered by insurance – many new homes benefit from major damage policies. The terms should be carefully reviewed and timescales for notifying claims followed.
  • If the Developer is not liable then Lessors and Lessees should read and understand the leases to ascertain who is responsible for rectifying the defect and how these might be paid for.

Those still in doubt should seek early legal advice.

Until the Government grasps the nettle and comes up with a proposal that addresses all buildings affected by fire-safety defects, arguments over liability and the ensuing anxiety look set to continue.

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