Cladding Liability Update – Grenfell Enquiry (phase 1)
Evidence from the first phase of the Grenfell Enquiry which ended in December has confirmed how quickly combustible cladding contributed to the spread of the fire. The external cladding was alight within 11 minutes of the kitchen fire starting after the fire breached the pvc-u window fittings from inside the fourth floor flat. As more information becomes available as to how the fire spread so quickly – a clearer picture is emerging on what this means for developers, contractors and consultants associated with buildings that have combustible cladding.
Although progress has been made with replacing combustible cladding on social housing, remedial works to private blocks has been slow. The Government is encouraging private landlords to pay for any repairs and threatening new measures if they fail to do so. The rate of repairs to private blocks will only rise once liability is confirmed. 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.
The Courts have now confirmed that landlords may share the costs of replacing combustible cladding with lessees through the service charge, but lessees may challenge the amount. Landlords should expect that passing on costs to lessees will result in counterclaims for breach of the landlords repairing obligations. Whether these counterclaims will succeed depends on the terms of the lease and when the damage occurred.
In the future there is a possibility that liability could be shared between multiple landlords, this means that developers who built a defective block but subsequently sold their interest could still find themselves liable. Lessees can also bring claims under the Defective Premises Act 1972 which imposes duties on those involved in building and designing new dwellings to use proper materials and to see that a completed dwelling is fit for habitation.
Claims against those who designed and installed or certified combustible cladding will be premature in advance of the conclusions of the second phase of the enquiry which is not now expected to report until 2020.