To what extent should landlords who have breached fire safety rules be entitled to recover the costs of remedying such breaches from tenants by way of service charges? The Upper Tribunal (UT) considered that important issue in a case concerning a former office building that had been converted into 96 flats.

The building came to the attention of the local fire and rescue service when its fire alarm was disabled by a leak. A fire officer attended and found evidence that fire compartmentation and separation measures were inadequate. Given the building’s height, he also expressed concern that its lifts were inadequately protected against fire.

In the absence of any information about the material used to clad the exterior of the building, the officer assumed that it was an aluminium composite which represented a risk to all residents. Although that assumption subsequently turned out to be incorrect, the officer threatened to prohibit occupation of the building unless fire safety measures were instigated, including a 24-hour waking watch.

By the time that the problems identified by the officer had been remedied, a waking watch had been in place for about four months, at a cost of almost £58,000. The building’s landlord sought to recover that cost via tenants’ service charges. After many of them objected, however, the First-tier Tribunal (FTT) limited the landlord’s recovery to about £6,000. That sum represented the cost of the first seven days of the waking watch, prior to reinstatement of the alarm system.

Ruling on the landlord’s challenge to that outcome, the UT noted that a fire risk assessment was conducted whilst the building was undergoing conversion. It found a medium likelihood of the building catching fire and stated that it was essential that efforts be made to reduce that risk. It recommended that the assessment should be reviewed at regular intervals, usually not exceeding 12 months.

The UT observed, however, that there was no evidence that either the landlord or its managing agents had taken any steps to review the assessment or to commission a further assessment after it acquired the building’s freehold. The landlord’s continuing duty under Article 9 of the Regulatory Reform (Fire Safety) Order 2005 to commission a suitable and sufficient fire risk assessment remained unfulfilled when the waking watch was imposed.

Had an up-to-date fire assessment been commissioned when it should have been, the defects would have been identified and remedied prior to the fire officer’s visit. Most of the cost of the waking watch was thus wholly avoidable and attributable to the acts or omissions of the landlord or its agents. On that basis, it was open to the FTT to find that it would be unreasonable to include that cost on tenants’ service charge bills.