The recent Advice Note on Balconies on Residential Building produced by the Ministry of Housing, Communities and Local Government (“MHCLG”) sets out the suggested action to be taken by responsible entities for buildings that may contain combustible materials on their exterior walls. It is advised that landlords and/or management companies should ensure that they are fully aware of the materials used on all balconies on their buildings and carry out works to change these materials where they are deemed inappropriate in limiting the spread of fire.
Where does the responsibility lie in respect of the leases?
Access to a balcony to inspect and test the materials and potentially carry out works requires a thorough review of the specific leases to the building. It is important to establish where the responsibility lies in respect of works required for the following reasons:
i. Who owns the balcony? The extent of the lessee’s demise should be considered, does this include the balcony or is there a right/easement in place granting the lessee use of the balcony?
ii. In the event that the lessee owns the balcony, to what extent is the balcony demised? This could be the surface layer only or could extend further to the lower membrane. It is unlikely to include the structural parts of the balcony itself but this will depend on the lease.
iii. Can access be gained? – balconies can only be accessed via the flat to which it is attached to. Without the consent of the lessee, works cannot be done as the same may amount to trespass. If the lease makes provision for access, the process set out in the lease should be adopted. If required, access injunctions can be sought.
The Service Charge
In the event that works are required to the balconies and the extent of the demise established, works to the retained, maintained and structural areas may form part of the service charge mechanism within the leases. Works to a demised area of the balcony generally will not and the repair, maintenance or improvement of demised areas will be the responsibility of the lessee.
Landlords and management companies should be comfortable with what costs form part of the service charge expenditure before incurring the same. If the services to be provided are not clear, advice should be sought.
Where combustible materials are used in the construction of balconies or on the exterior walls of the building, MHCLG advises that balconies should not be used for smoking, barbeques or storage of combustible materials etc. The responsible entity of the building should communicate to all leaseholders (and arguably residents) that these activities should not be carried out and could cause or increase the risk of fire and the spread of fire.
Depending upon the lease terms, the regulations contained within usually make reference to the use of balconies and these regulations should be enforced in the event of non-compliance. In the event that the regulations may not reach the threshold to take action against leaseholders who fail to adhere to the advice and requests made in respect of the use of their balcony, there may be provision within the lease to alter, amend or add to the current regulations within the lease upon notice from the landlord or management company. This will allow for additional regulations to be incorporated and in the event of breach, action may be taken.
What is clear from the Advice Note is that the implementation of the advice on a practical level is dependent upon the ownership of the balconies in question and the extent to which the landlord or management company can rectify issues of combustible materials being present or in enforcing covenants where required. If the provisions are not clear, legal advice should be sought.