What does the first remediation order mean?

Since the Grenfell Tower fire in 2017, many leaseholders have found themselves facing high service charge payments to cover the costs of remediating building safety defects.

Remediation contribution orders (RCOs) were therefore introduced in the Building Safety Act 2022 (BSA), to protect leaseholders in multi-occupancy residential buildings from the costs associated with what are mostly historical defects.

The First-tier Tribunal (FTT) made its first RCO under the BSA earlier this year, in Batish and others v Inspired Sutton Limited and others. This is widely predicted to be the first of many such orders the FTT will make.

The resulting order may then require a 'specified entity' to make a payment towards the remediation costs that have been incurred, reimbursing the party that paid for the works originally; or towards costs that are to be incurred, provided the works are necessary to remediate a 'relevant defect' in a 'relevant building'.

A specified entity can be a body corporate or partnership, provided it is:

'(a) a landlord under a lease of the relevant building or any part of it

(b) a person who was such a landlord at the qualifying time

(c) a developer in relation to the relevant building, or

(d) a person associated with a person within any of paragraphs (a) or (c).'

The definition of 'associated' is broad, and includes subsidiaries, parent companies and sister companies in a group structure, as well as companies that share directors or have shared directors in the five years prior to 14 February 2022, being the date that is known in the BSA as the 'qualifying time'.

A 'relevant defect' is meanwhile defined under section 120 of the BSA as one that arises 'as a result of anything done (or not done), or anything used (or not used), in connection with relevant works', and which causes a building safety risk.

A 'relevant building' is defined as a self-contained building or part of a building containing at least two dwellings, which is at least 11m in height or has at least five storeys.

The landlord was a special-purpose vehicle that had been set up to develop Sutton Court and sell the freehold on. The freehold was never sold, however, and defects were identified that required the replacement of unsafe cladding and render on part of the facades, along with rectification and replacement of balconies.

The leaseholders sought reimbursement of £192,635.64 of service charge payments made for these remedial works. They applied to the FTT for an RCO on the basis that:

• service charge payments fell under the provisions of the BSA and were made for the remediation works
• it was just and equitable to make an RCO.

In terms of the case against the landlord, the FTT ran through the tests in the BSA and decided:

• the property was a relevant building under the legislation
• the leaseholders were all interested parties
• the landlord was a relevant specified body corporate
• the costs relating to the remediation were incurred in association with 'relevant defects' that constituted 'a building safety risk'; the FTT determined that only costs relating to fire safety works could be recovered, and any improvements not relating to removal of defective cladding could not
• the landlord was responsible for these defects
• paragraph 2 of Schedule 8 of the BSA provides that no service charge is payable for defects that are the landlord's responsibility
• it was just and equitable to make the RCO.

However, interested parties should not put too much store by this particular case – and keep an eye out for further decisions to identify trends in approach and interpretation.

This is because no party was legally represented, no expert evidence was presented, and the landlord was debarred from defending the proceedings. Furthermore, the decision did not provide any significant clarity on the meaning of 'just and equitable'.

In this sense, relevant stakeholders may feel slightly short-changed by the FTT's first decision in that it does not provide the clarity that they were seeking. In addition, unlike court decisions, the FTT's decisions do not create legally binding precedents, so there is always the potential for a tribunal to take a different approach in the future in any event.