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Cladding issue - leaseholders advice

Lil82 2 months ago   Reply

Dear all, 

I'm just contacting you aiming to get professional advice regarding the following issue.

I am a leaseholder who lives in a block of flats managed by  a management company , I wanted to remortgage my home and fix my monthly mortgage payment, the bank has come back to us requesting a  certificate that complies with the guidance   MHCLG Advice Note 14. The management company (domestic clients or commercial clients following CDM  regulations 2015) are refusing to disclose the cladding we have and that they are not disclosing whether  they are seeking compliance following the MHCLG guidance as they believe is not legislation and therefore they  are  not under any obligation to follow the new guidance 

I am a recently qualified health and safety  and I know the very basics we are not cover by hasawa1974 by we are cover by the housing act 2004. section 10 Consultation with fire and rescue authorities in certain cases. OUR LENDER WILL VALUE OUR PROPERTY TO £0 BECAUSE OF LACK OF ANSWERS REGARDING CLADDING.

this is happening now more and more to many leaseholders like me, I have researched documentation ad I have the FRA of the building and the cladding was inspected visually but no assessed properly and I am aware by CDM regulations 2015 the principal contractor had to disclosed H&S information to commercial clients. but even by contacting the builders  they have instructed to not disclosed the cladding type  and management company  has stated that they have not  sign off cladding by insurance ?

is this something 

Tim D 2 months ago   Reply

Lil

An unfortunate and unsatisfactory predicament for a leaseholder with a mortgage wishing to move from a variable rate to a lower fixed rate… possibly even with the same mortgagee.

The end point of this is one of valuation. As such providing the lenders valuer with confirmation of the cladding details and certification will allay their concerns and enable them to assess the full market value. I assume that buildings insurance terms are normal and so the Mortgagee’s interest remains protected in terms of Fire and other insured perils.

Given the non-disclosure and fishy antics by the Landlord’s Agent, you can reasonably assume that there is no cladding certificate and arguing H&S/CDM duties is probably a waste of your time. You will appreciate also that the cost of re-cladding will be borne by the leaseholders as a representative share of the whole along with any remedial or corrective works to other non-compliant Fire Safety provisions. You will be aware that there has been a lot of non-compliance with Building Regs 2010 Schedule 1 Part B some deliberate/corner cutting, some out of ignorance, some poor workmanship and so on…

Conceivably the Landlord’s actions may be prejudicial to leaseholders interest in respect of latent defects (if discovered) as a three year period runs from discovery or within 6 years if a simple contract or 12 years if a deed of contract.

Your preamble does not contain enough key premises information to provide any meaningful advice for you and your circumstances such as: Age, height ≤ 18m (upper habitable floor), number of storeys/flats, are all leaseholders/buy to lets, are flats being sold… are people moving in (with mortgages)  and so on. There are potentially range of options but which is best for you (now) will depend on your circumstances, an assessment of financial benefit from the change, your determination for a resolution, how much time you have and many other interweaving factors outside your control.

In contrast the Landlord’s (possibly cognisant) position is simple as their only interest is collecting the Ground Rents and other charges over the (125 year+) term of the lease. As such they can wait.. and wait… wait to hear if the recladding/remedials (if that is needed) will qualify or be covered by a taxpayer funded programme (if agreed). Do not withhold payment of charges due under the lease.

In summary there is no obvious single action from a leaseholder working independently that can unlock this. As a collective with common purpose you will have a much louder voice. Mobilising support requires a common purpose which may not be so widely shared as you might expect especially if buy to let or social tenants live there.

In the meantime and independent of the uncooperative Landlord and if recently completed you should try to find out the cladding type via other means: Leasehold documentation; Planning records (potentially free), LA Building Control (may charge), Warrantor records (may charge), Breeam documents, EPC Certificates, the Fire & Rescue Authority may share their 7 (2) (d) findings with you (as a leaseholder interested party) or you send FOi request; sales particulars for your purchase, sales particulars for others. Some of these are clutching at straws but you may only need a reference. Potentially this may be a fools errand as you may find no relevant information or otherwise findings may confirm a negative position.

In truth H&S/CDM are peripheral issues as this is more about the relationship of the Freeholder and Leaseholder and their respective covenants and beyond this forum. Your flat will always have value but borrowing money against it requires due diligence in respect of those who value it.

Ultimately you will need to assess the value the saving against the value of your free time and the chance that you can satisfy the lenders document request. 

Good luck

raydetinu 2 months ago   Reply

Well, got have my two penny's worth!

Any new owner or purchaser of a building is entitled by law to have the health and safety file, which must include as built drawings, specifications etc.

We have just taken à housebuilder to court and won this disclosure from a national contractor.

Their argument was they complied by using the stansrd NHBC disclosure form, but we proved that it does not comply with the regs!

And as built details and drawings are required.

Surely the same will be applicable here!

Take them to court if they will not release details.

CDM is quite clear on this point!

peter gotch 2 months ago   Reply

Lil, this is obviously high on the agenda at present, but you are not going to get the "professional advice" you are looking for on a discussion forum like this. 

Possibly time to get your local councillor or MP on the case.

Wally Lishman 2 months ago   Reply

Interesting responses, I was going to say something similar to Ray, but, I think CDM came in 1998-ish but didn't apply to buildings under construction only to new builds after that date, I think there was a 6 months lead in time but a clever person will need to tell you that. So it does depend upon when the property was built as to whether there is a H&S File, to which you may be entitled to ask for!

Good Luck

Tim D 2 months ago   Reply

Ray/Wally

'Surely the same will be applicable here!' …I feel not. There is no CDM or H&S angle to this.

Warning... we're going well off track:

This is a block of flats owned by the Freeholder who has all the information they need…clearly not wishing to prejudice their position by not disclosing it. The Leaseholder in comparison has a right to occupy and ownership extends to only to internal linings, fixtures, fittings and finishes… the structure, windows cladding, engineering services and common parts are nothing to do with the Leaseholder other than covenants for repair cost and other charges.

The inequity in Lil’s case is that she is being constrained by something that is owned by a third party (the Freeholder/Landlord) and over which she has no control. The covenant of the lease however requires her to contribute her share of any repair and this links back to value and safeguarding the Lender’s interest.

Peter’s advice is good but an e-petition for a parliamentary debate may capture quicker the imagination of those trapped in a similar predicament. A solution through a change in legislation could be a Schedule of Premises information for leasehold premises covering an array of matters relevant to lenders’/Insurers’/valuers’ interests (Note: This is not a CDM H&S File). This could most easily be implemented as part of Building Regulations (say Schedule 1 Part S ‘Schedule of Premises information’). It’s easy to see how this could be implemented moving forward but retrospective compilation could include a track-back or other process and some form of registration. The schedule I envisage is a simple list under the three interests and capable of update. The potential spin-off is Developers building premises that:

Satisfy Lenders/Valuers/insurers criteria,

Provide added freedom for Leaseholders,

Potentially simplified stakeholder interfaces for Freeholder

Not to leave out those with combustible cladding that situation has come about as a failure of Design, Construction and Approval processes.. those affected may argue a case for a taxpayer warranty and others for caveat emptor.. that's probably where it sits around now.

Lil...Time to petition for something.

raydetinu 2 months ago   Reply

COM health and safety files with as built information applies to Re clad works! And all construction works since 1994!

So to say it's off track is not true! If you are entitled to the information legally. Then it should be supplied!

Lil82 2 months ago   Reply

Thanks everyone for your replies,
I was not ready to post but for some reason it happened
As it stands  the only action, I can take is to get the cladding info, but I can see now that there is a serious loophole between guidance and legislation. The management company and leasehold owner are just sticking to their guns stating they are not obliged to follow the guidance as it is not law, and Taylor Wimpey who are the construction company passed the bucket saying they have passed all the information to the building owners. By CDM owners and Management company are responsible for further maintenance of the building.
I contacted London fire brigade and local authority about fire safety concerns, appealing to them as enforcing authority under safety grounds. By the way the Government will just help buildings to change ACM cladding, any other cladding is out of the question, why no one thought  about creating a list including  acceptable cladding materials open to the public and management companies. We are all in the dark, because the Bolton Fire is an example of non-ACM flammable cladding. And here we are

Many thanks for your help