Upper Tribunal clarifies leaseholder protections for unsafe cladding

A recent decision by the Upper Tribunal (‘UT’) in Almacantar Centre Point Nominee No 1 Ltd and another v de Valk and others [2025] UKUT 298 (LC) has provided clarity on the scope of leaseholder protections under the Building Safety Act 2022 (‘BSA 2022’). The UT agreed with the First Tier Tribunal’s (‘FTT’) decision that no service charge is payable by qualifying leaseholders in respect of cladding remediation even if there is no relevant defect in the building. 

This ruling is significant for landlords, as it addresses the definition of “cladding remediation” in paragraph 8 of schedule 8 of the BSA 2022 and whether the costs of the same can be recovered from qualifying leaseholders. 

Background

The dispute arose in relation to Centre Point House (CPH) in Central London, a building with a hardwood timber-framed façade and single-glazed windows above spandrel panels. Over time, the façade deteriorated, and there were incidents where glass fell from the building onto the street below. 

The freeholder, Almacantar, proposed a scheme of remedial works and sought to recover the costs through the service charge. The leaseholders objected, arguing that the works amounted to “cladding remediation” as defined by paragraph 8 of schedule 8 of the BSA 2022, which prohibits landlords from charging qualifying leaseholders for the removal or replacement of unsafe cladding.

The FTT found in favour of the leaseholders, holding that the panels and windows formed part of an unsafe cladding system. Almacantar appealed, contending that there had to be a “relevant defect” for paragraph 8 to bite, that the cladding on CPH did not comprise a cladding system and that for cladding to be “unsafe” it had to pose a fire risk. 

UT Decision 

The UT dismissed the appeal, confirming that the BSA 2022 is not limited to modern materials or fire-related hazards. 

The UT considered different definitions of cladding, and found that whether something is “cladding” was a question of fact. The FTT concluded that CPH met those definitions and its design “is apt to meet the description of cladding” and the UT found no justification to depart from the FTT's findings in that regard. 

Furthermore, the term “unsafe” should be given its ordinary and natural meaning, encompassing a range of threats to building safety or residents, not just fire risk. In this case, the fact that glass had fallen from the façade was sufficient to render the cladding system unsafe.

The UT also clarified that the 30-year limitation period that applies to “relevant defects” elsewhere in the BSA 2022 does not apply to unsafe cladding under paragraph 8. This means that landlords cannot recover the costs of removing or replacing unsafe cladding from qualifying leaseholders, regardless of when the cladding was installed.

Key Takeaways 

1. Any cladding system (as defined) that is unsafe, whether due to fire, structural, or other hazards, will fall within the scope of paragraph 8 of schedule 8 of the BSA 2022.
2. The UT, agreeing with the FTT, held that there was no requirement for unsafe cladding to be a "relevant defect" for paragraph 8 of Schedule 8 to apply. Resultingly, the protection provided by paragraph 8 is not subject to the 30-year timeframe that applies to "relevant defects".
3. The UT’s interpretation reflects Parliament’s intention to shield leaseholders from the financial burden of making unsafe cladding safe, regardless of the age or type of cladding involved. 
4. For landlords, the implications are significant. Where there is found to be unsafe cladding forming the outer wall of an external wall system landlords will be unable to recover substantial remediation costs through the service charge where the leaseholders are qualifying leaseholders. This ruling underscores the need for landlords to carefully assess whether proposed works constitute cladding remediation and whether the cladding is unsafe.

The judgment for this case can be found below:

Almacantar Centre Point Nominee No 1 Ltd and another v de Valk and others [2025] UKUT 298 (LC) 

If you would like any more information on this, please contact Zoe McLean-Wells or Hannah Keane.