The Upper Tribunal (Lands Chamber) has upheld a ruling that waking watch service charges demanded by a landlord as a consequence of having failed to undertake a fire risk assessment were unreasonable and therefore not payable by the leaseholders.
In Radcliffe Investment Properties Ltd v Meeson & Ors [2023] UKUT 209 (LC), the Upper Tribunal (Lands Chamber) determined the landlord's appeal against the First-Tier Tribunal's ruling that the landlord could only recover £5,859 of a total of £57,894 of waking watch costs.
The case concerned a former office building in Manchester, Park Rise, which was converted in 2018 to provide 96 residential flats. Before the conversion works were completed a fire risk assessment was undertaken pursuant to the Regulatory Reform (Fire Safety) Order 2005, which made recommendations to reduce the fire risk and suggested that it should be reviewed by January 2019.
However, no action was taken and in May 2019 the fire alarm was disabled by a water leak. A fire officer inspected the building and found numerous issues, threatening to make a prohibition order unless a waking watch was instigated with immediate effect.
The fire officer subsequently served an enforcement notice due to the landlord's failure to maintain a suitable and sufficient fire risk assessment, in breach of the 2005 Fire Safety Order.
The landlord remedied the issues and then sought recovery of the full waking watch costs of £57,894 as a service charge, which the leaseholders challenged by application to the First-tier Tribunal.
The FTT ruled that if the landlord had undertaken a fire risk assessment when required, the defects would have been discovered sooner and action could have been taken, which would have avoided the necessity of the waking watch for all but the first 7 days.
The Upper Tribunal upheld the FTT's ruling, finding that the increased costs of the waking watch were "wholly unavoidable", if the landlord had commissioned an up-to-date fire risk assessment when it should have done. The Upper Tribunal ruled that the FTT was entitled to conclude that most of the costs of the waking watch were not payable by the leaseholders.
This case is a significant warning to landlords that a failure to maintain up-to-date fire risk assessments can have significant adverse consequences concerning service charge recovery. When weighing up the evidence as to the causative effect of a failure to undertake a fire risk assessment, it is likely that Tribunals will take a dim view of landlords who have failed to strictly comply with the requirements of the 2005 Fire Safety Order.
