FTT application to rule on service charge liability

[Jericho]

Has anyone any experience of applying to the FTT for a ruling on liability to pay service charges, under S27A(3) LTA 1985?

If so any feedback and advice would be much appreciated.

Background to very long running saga is:
Self managed RMC identified that all flat entrance doors in the block needed replacing with fire resistant doors (FD30S). Doors have been replaced over many many years by individual leaseholders without formal written permission(!).

As a safeguard we asked our solicitor to interpret our 1960s lease re. who has responsibility to maintain these doors. Initially we the RMC thought it lay with us but the solicitor said it could equally be interpreted to be down to the leaseholder. So lease is unclear.

Option to vary the leases to make it clear that RMC has responsibility may be problematic due to some leaseholders refusing to give their approvals. There is obviously the legal expenses to consider too and the complication of having to involve all mortgage lenders.

Other option is apparently to apply to the FTT for them to rule on the validity of the RMC to require leaseholders to pay for the door replacement under the service charge. Expectation is that the FTT would examine the lease and effectively give a binding ruling that either the RMC or leaseholders were responsible for the doors.

Forcing leaseholders to replace their doors under breach of unauthorised alteration is undermined by: excessive elapsed time since the breaches, lease extensions (surrender and regrant) and tacit informal approval by previous RMC boards.

[JK0]

Are your lessees all barrack-room lawyers, then?

Surely, if you just explain to everyone that the job needs doing for fire safety (and insurance), no-one is going to raise objections?

[Stacker]

When the property was built the doors would have had to meet building regulations and HSF regulations, regulations have moved on and improved become a higher standard over the years requiring 3o minutes fire resistance, have you had a recent fire risk report done? Your local Fire Officers can do one for free and if they think the doors are not complaint they could fine the landlord or whoever owns the doors and enforce through Council/ Enviromental health officer...could also be classed as an improvement which your lease may not allow however the directors have a duty of care

[Jericho]

Are your lessees all barrack-room lawyers, then?

Surely, if you just explain to everyone that the job needs doing for fire safety (and insurance), no-one is going to raise objections?

Good point JK0.

Enforcement is the main issue. If we go down the service charge route I can guarantee at least one and maybe several others would not pay. How do you then enforce the replacement work and payment if the lease is not clear that the RMC has the right to do so?

Many leaseholders have had the same door for decades and getting them to understand it's not acceptable after all this time and it's going to cost them a fair amount of money to boot is not an easy ride. We currently have one regular non-payer of the annual service charge who is subject to legal action.

[Jericho]

When the property was built the doors would have had to meet building regulations and HSF regulations, regulations have moved on and improved become a higher standard over the years requiring 3o minutes fire resistance, have you had a recent fire risk report done? Your local Fire Officers can do one for free and if they think the doors are not complaint they could fine the landlord or whoever owns the doors and enforce through Council/ Enviromental health officer...could also be classed as an improvement which your lease may not allow however the directors have a duty of care

Hi Stacker - yes we've done a fire risk assessment. The building was built in the 1960s and all but two doors have been replaced, mainly with uPVC doors. None of the replacements are FD30S standard. Two original wooden doors (with Georgian glazing) are not adequate given that they do not have self closers and have worn over their 50+ year lifespan.

FYI the local fire service do not do fire risk assessments for common areas of buildings, although we did consult an inspector on some of the findings which was helpful. They do offer free home safety checks for tenants which is maybe the source of confusion.

The RMC is the landlord. Speaking to our local fire inspector the fire service would probably defer to the local environmental authority to enforce under the Housing Act (2004). However this comes back to the lack of clarity over responsibility for the doors.

[Macromia]

If it is unclear whether responsibility lies with the lessor or lessee, leases will usually be construed in whichever way is considered to be most favourable to the lessee.
However, in this case, that could also be considered to potentially go either way.
It would likely be cheaper for those that don't have compliant doors if the replacement is done by the RTM - but some people might have to pay even though their doors don't need replacing, and people who have replaced their doors may object to having the choice of door taken away from them.

You can ask the FTT to make a ruling on this (although that would be an additional expense that would then need to be paid - and not all leases allow this type of expense to be charged to the service charge account).

[flyingfreehold]

This argument is raging at thousands of blocks up and down the country. Nobody disputes the doors need changing, but the question is whose are they? I have spent many many hours on this and have learned that it is a misnomer to think that just changing the door is sufficient; what is quite often required is a compliant fire door set
This means that it is not just the door that needs changing but also the frame!

If the door is owned by the leaseholder, the leaseholder is caught by legislation requiring him or her to keep the premises in repair in accordance with statute.
If the door is owned by the l/l, well it has to be done. What is a doorway? It is an opening in a fire proof wall. It is part of the fireproof escape route which this landlord is bound to maintain

But if it is the door and the frame that need to come up to standard, then the job has to be done by the l/l because the frame will not be part of the demise.

Therefore, on balance, to howls of protest from some, the answer on balance is the fireproof doorset should be upgraded by the l/l and paid for by the s/c in tenures of long leasehold, and from the resources of the landlord where rack rented.

[Jericho]

Thanks for the feedback

Macromia - all 30 doors in the building are non-compliant and need changing. If the RMC replaces the doors then bulk discounts can be negotiated. We'd probably choose a mid-range composite FD30S door to cut down on the long-term maintenance costs. If down to the leaseholder then they will have more choice of course and could buy a cheaper plain wooden door or a more expensive fancy composite; the RMC would need proof of the door fire test certification (valid for chosen hardware options) and that it had been fitted by an approved contractor (e.g. BM Trada Q-Mark or FIRAS certified).

Experience in getting initial estimates has shown us that finding a suitably qualified supplier and installer is very difficult. Many are much more interested in new builds and social housing. I have managed to get a couple of estimates to date. For composite doors there are a few websites which allow you to choose a door and customise it to an extent. These companies also offer a survey and fitting service.

My understanding is that the FTT application is £100 plus another £200 if there needs to be a hearing. All leaseholders are shareholders in the RMC so would need to contribute equally to these costs according to the company articles.

From a safety point of view it makes sense that the landlord has control over the doors which form part of the fire resistant compartment for each flat. I understand that this is the recommendation for drafting new leases. I've no idea how the FTT would interpret our lease though.

flyingfreehold - you are absolutely correct that the door frames would need replacing too, fitted with intumescent and smoke seals. So yes it's full FD30S doorsets we are looking at.

It's good to know that I am not the only one suffering a world of pain around this topic. The lease does demise the internal faces of the external walls of the flat, however to me (and also our solicitor) it's not clear whether the door and frame would be classed as the internal or external part of such walls. The red marking on the lease plan indicating the demised premises does not help. The words "door" and "door frame" are not mentioned in the lease.