Understanding Cladding: What Landlords Need to Know

Following the Grenfell tragedy, the Government introduced stricter fire safety regulations for various residential properties, including blocks of flats (owned by housing associations, social housing providers, or privately owned), student accommodation, assisted living facilities, care homes, and Houses in Multiple Occupation (HMOs). This has led to a decline in flat sales as mortgage lenders demanded evidence of compliance with safety standards. To address this, in December 2019, the Royal Institute of Chartered Surveyors (RICS) introduced the External Wall System form (EWS).

This form serves as proof that an assessment has been conducted on the external walls of residential apartment buildings to ensure they are adequately clad to reduce combustibility and the spread of fire. It is initiated when a leaseholder is buying, selling, or re-mortgaging an apartment within such a building. The form is not a legal requirement nor a building safety certificate; rather, it serves as a tool for mortgage valuations and arranging insurance cover, helping to evaluate the fire safety risks associated with the building’s external wall cladding system.

The assessment must be carried out by a qualified professional, such as a Chartered Construction Professional, who confirms whether the building meets safety standards or requires remediation work. According to RICS, the EWS form must be completed by a fully qualified member of a relevant professional body within the construction industry with expertise in identifying materials within the external wall cladding and attachments, including the correct installation of fire-resisting cavity barriers and fire-stopping.

The assessment

The assessment primarily examines the external wall system of the building, considering factors like cladding type, insulation, and fire break systems.

It’s essential to understand that while the EWS1 form assesses the external wall system’s fire safety, it doesn’t provide a comprehensive review of the building’s overall fire strategy. The form reflects the findings of this assessment, indicating whether the external wall system meets the required safety standards.

The Form

Upon completing the assessment, the evaluator fills out the EWS1 form, which has now transitioned to an electronic format with version control for enhanced transparency. The form comprises two sections: A and B.

In Section A, the evaluator confirms the absence of combustible materials in the building’s external wall system or, if present, their compliance with necessary standards for limited combustibility. If Section A requirements are met, no further action is necessary.

Should Section A criteria not be met, the evaluator proceeds to Section B. This section addresses situations where combustible materials are present, requiring the evaluator to determine if they pose a risk necessitating remedial action. If such a risk is identified, the building owner must undertake the necessary remediation work.

The updated EWS1 form also includes provisions for assessing the need for interim measures and providing additional guidance to evaluators and building owners.

Once the form is completed and signed, it remains valid for five years for the entire building, eliminating the need for individual assessments for each flat.

The only way to determine this is by completing an initial assessment. To start with, the EWS1 form applied solely to buildings exceeding 18 metres in height. However, in January 2020, the Government revised the criteria, potentially extending the requirement to encompass all residential buildings, regardless of height. Nonetheless, not every building will necessitate an EWS1.

In addition to the building’s height, factors such as the type and quantity of cladding, the presence of balconies, and combustible materials are considered. Ultimately, valuers are obliged to adhere to the directives provided by their lender clients.

If your building lacks cladding or wooden balconies, it’s unlikely you’ll need an EWS1 form. However, it’s important not to assume there’s no cladding present. Even properties constructed with brick or stone may require an EWS1 certificate if they feature panels warranting a fire assessment. To confirm, consult your solicitor.

The responsibility for coordinating the EWS assessment lies with the building owner (freeholder) or the managing agent.

If you’re in the process of selling a flat, your initial step should involve querying the owner or agent regarding the existence of a valid EWS certificate or whether an assessment has determined that one isn’t necessary. Regardless of the outcome, they are obligated to furnish you with this information.

In instances where an assessment hasn’t been conducted, they must make arrangements for one.

Should the building owner or managing agent fail to provide the necessary information or decline to initiate the assessment, seeking guidance and assistance from your local council authority is advisable.

As mentioned earlier, the EWS process requires specifically qualified engineers to conduct intrusive checks on external walls.

When the new regulations were initially implemented, there was a limited number of qualified fire engineers available to assess properties. This led to a backlog and delays for both sellers and buyers.

According to the Fire Protection Association, by the end of 2020, 43% of leaseholders were informed that the process could take longer than two years.

To address the shortage of qualified assessors, RICS introduced a new training program in January 2021, allowing chartered surveyors to undertake assessments.

However, due to the high demand for assessments from housing associations, building owners, and management companies, coupled with the time-consuming nature of the process from assessment to final certification, obtaining the EWS1 certificate could take anywhere from six to twelve months or even longer.

Furthermore, if a building fails to meet safety requirements, remediation work may be necessary. A survey by the Fire Protection Association in September 2020 found that 89% of buildings assessed for external wall fire risks required remediation. Addressing structural façade issues in large buildings is a complex undertaking, further prolonging the process.

Previously, until 2021, leaseholders bore the entire burden of any remediation works necessary for unsafe cladding. However, in February 2021, the Government announced £3.5 billion funding to the Cladding Safety Scheme to address unsafe buildings.

For buildings taller than 18 metres, all remediation works are fully funded by the Government. Leaseholders in buildings between 11 and 18 metres were eligible for a financing scheme, limiting their contribution to no more than £50 per month for the removal of unsafe cladding.

With the enactment of the Building Safety Act 2022, there is now improved financial protection for qualifying leaseholders residing in flats within buildings exceeding 11 metres or five storeys. Building owners are prohibited from passing on the costs of cladding removal or other remedial works related to hazardous cladding to leaseholders. Additionally, there is protection against the expenses associated with interim fire safety measures, such as waking watches.

However, this financial safeguard only extends to individuals who own no more than three residential properties in the UK.

If you’re a leaseholder encountering any challenges, you can seek guidance and support from The Leasehold Advisory Service and the Leasehold Knowledge Partnership.

Ensuring the safety of your tenants should always be your top priority if you’re a landlord.

If you own a flat and haven’t already done so, it’s imperative to enquire immediately about the status of an EWS assessment from the freeholder. They should either have initiated the assessment process or be aware of the materials used in the cladding and exterior walls. If they cannot provide this information, it is their responsibility to arrange for an assessment.

However, obtaining an EWS assessment or an EWS1 certificate may be subject to factors beyond your control.

A scarcity of engineers coupled with a backlog of remedial building works means it could be years before you can furnish your tenants with an EWS1 certificate. Nonetheless, this shouldn’t deter you from initiating the process, particularly if your building falls into a higher risk category (18 metres or above).

While awaiting an EWS1 certificate, it’s essential to reassure your tenants that efforts are underway to secure one. Additionally, ensure you’re taking all necessary precautions to maintain their safety within the property.

If your property is found to have cladding, informing your insurer is crucial as it affects the risk profile of your property. Since cladding has implications for fire safety, structural integrity, and potential liability, disclosing this information ensures transparency and allows the insurer to accurately assess the risks involved. Failure to disclose relevant details could lead to cover issues or disputes in the event of a claim, so it’s important to keep your insurer informed to maintain comprehensive protection and avoid potential complications.

The Building Safety Act 2022, passed on 28^th April 2022, under Royal Assent, marks a significant overhaul of England’s homebuilding industry. This legislation encompasses the entirety of the sector, reshaping the processes involved in designing, constructing, managing, and ensuring the safety of buildings. Notably, the Act introduces measures to hold accountable those responsible for historical building safety defects, ushering in a new era of accountability and transparency.

Among the initial actions taken was the establishment of a building safety pledge, encouraging developers to commit to remediating critical fire safety works in buildings over 11 metres tall that they have been involved in developing or refurbishing over the past 30 years. Furthermore, signatories are obligated to reimburse any government funding received for remediation programs related to their developed or refurbished buildings. The government website provides a list of developers who have pledged their commitment to this initiative.

While the Act was passed with many provisions yet to be clarified, the government has affirmed its commitment to introducing various legal structures supporting the new building safety regime within 12 months. Although some legislation has been enacted since then, certain aspects remain open to interpretation and may undergo further refinement.

From 1^st October 2023, Section 156 of the Building Safety Act enforces fire safety regulations in communal areas of multi-occupied residential buildings. Landlords with control over communal parts must adhere to fire risk assessment protocols and provide tenants with fire safety information.

The Fire Safety (England) Regulations 2022, effective 23^rd January 2023, stand as a distinct legislative framework from the Building Safety Act, yet complement the new regulatory landscape established by the Act.

These fire safety regulations carry significant implications for landlords, as they impose novel duties upon ‘Responsible Persons‘, including building owners or property managers, overseeing all multi-occupied buildings. This encompasses any property comprising two or more domestic premises, featuring shared areas such as hallways or stairwells crucial for residents’ emergency egress.

While the adjustments for HMOs and flats within buildings of up to four storeys remain relatively straightforward, properties situated in buildings exceeding 11 metres in height face notably more intricate regulatory requirements under the new rules.

In most instances, privately rented HMOs are limited to four storeys or less. Consequently, the primary change for HMO landlords lies in the appointment of a Responsible Person tasked with fulfilling the prescribed duties outlined by the regulations.

Moreover, given the heightened emphasis on safety, landlords must assess their compliance with existing obligations. This includes ensuring the property undergoes fire resistance checks and maintaining safe electrical installations. Additionally, landlords should verify the fire compliance of internal doors, ensure the presence of smoke alarms and multi-purpose fire extinguishers on every floor, install carbon monoxide detectors, and uphold clear stairways and corridors. Ensuring tenants are adequately informed about evacuation procedures in the event of a fire emergency, all aimed at maximising safety.

Multi-occupied buildings exceeding 11 metres in height face heightened scrutiny and stringent regulations under both the Building Safety Act 2022 and the Fire Safety (England) Regulations 2022. This includes additional provisions for high-rise structures exceeding 18 metres or seven storeys in height.

Given the intricacy of these regulations, we recommend seeking guidance from professional building safety experts such as RICS or local Fire Safety Officers. However, in brief, the Responsible Person for buildings over 11 metres must conduct specific checks on fire doors in communal areas every three months and inspect flat entrance doors annually, addressing any defects promptly.

For buildings surpassing 18 metres or seven storeys, additional responsibilities include providing and maintaining wayfinding signage, documenting the design of external walls, and furnishing floor plans to the local fire and rescue service. Monthly routine checks of lifts and fire systems, including smoke control and alarm systems, are also mandated. Comprehensive records of these checks must be maintained and made accessible to building residents.

For a detailed outline of all fire safety responsibilities of the Responsible Person, please refer to the government website.

High-rise residential buildings must register with the new Building Safety Regulator (published by the Health and Safety Executive) within six months from April 2023, with an assigned responsibility for safety maintenance.

Landlords requiring leaseholders’ contributions for remedial works must furnish them with Landlord Certificates, also mandatory during property sales or leaseholder requests. Certificates are based on circumstances as of 14^th February 2022.