A landlord cannot be the subject of a Remediation Order where the Right to Manage has been exercised

The First-tier Tribunal (Property Chamber) ('FTT') has dismissed an application for a Remediation Order ('RO') pursuant to s123 of the Building Safety Act 2022 ('BSA') as the Respondent was not a ‘relevant landlord’ as defined by s123 (3) of the Building Safety Act ('BSA').

A RO requires a landlord to remedy specific defects or take certain steps in relation to a defect in a building. A RO has to be made against the 'relevant landlord' being  a “landlord under a lease of the building (or a part of it) which is required under that lease or by virtue of an enactment to repair or maintain anything relating to the defects”. 

In the case of Flats 5, 15 and 29 Thanet Lodge, 10 Mapesbury Road, NW2 4JA; LON/00AE/BSA/2024/0007,0500 and 0502 (link below for the full judgment) the FTT did not consider the landlord met the 'relevant landlord’ test. The application related to fire safety defects found in newly added flats on the roof of a pre-existing block. The landlord (freeholder) who was the developer of the additional units, was no longer managing the building following a successful Right to Manage application. The repair and maintenance obligation had been displaced by operation of the right to manage pursuant to the Commonhold and Leasehold Reform Act 2002 ('CLRA'). By virtue of s96 of CLRA the respondent was no longer required to repair or maintain anything relating to the relevant defect as such was now the role of the Right to Manage company pursuant to the CLRA. As such the Tribunal refused to make a Remediation Order. 

The applicant leaseholders could however separate to the RO application apply for a Remediation Contribution Order ('RCO') pursuant to s124 BSA which, if an order is made, requires a corporate body or partnership to pay for costs incurred in remedying relevant defects or incurred in connection with relevant defects for a relevant building. In this case, the landlord was the developer of the building and the RCO could be made against him. The FTT also commented that an RTM company could use s97 CLRA to agree that particular management functions be exercised by the landlord. In this case it appeared that such had not been considered by the RTM Company. 

The key takeaway from this case is that a landlord in a relevant building which is subject to the Right to Manage will not be a relevant landlord for the purposes of a RO application. Further, leaseholders should consider whether, if they are in building that needs remediation works falling within the scope of BSA, exercising their Right to Manage is the correct approach. 

For further information, please contact Zoe McLean-Wells.

Thanet Lodge, 10 Mapesbury Road, London NW2 4JA