Katie Edwards, Associate at JB Leitch looks at the responsibilities of landlords and management companies in respect of fire safety following the recent Advice Note on Balconies on Residential Building produced by the Ministry of Housing, Communities and Local Government.

The inclusion of balconies to apartments throughout the country is a desirable feature for outdoor living space that otherwise would not necessarily be available to tenants within blocks of flats. A balcony may form part the demised flat or may be an area retained by the landlord with the benefit of an easement. Either way, the same can lead to problems in the event of inappropriate use or the presence of combustible materials. Katie Edwards, Associate at JB Leitch, discusses the obligations for landlords and management companies who need to be aware of their responsibilities in respect of fire safety, health & safety procedures and maintenance obligations in respect of balconies.

Balconies containing combustible materials

Recent testing of external cladding systems has taken place on all high rise buildings but combustible materials can also be present in the construction and make up of balconies and these areas should not be overlooked when assessing the fire safety of a building.

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 consider carrying out works to change these materials where they are deemed inappropriate in limiting the spread of fire.

Balconies can be prone to the start of fires in the event of misuse of barbeques, inappropriate disposal of smoking materials, faulty external wiring and possibly arson. Balconies may also be inappropriately used for storage of flammable items which may increase the risk of the spread of fire. Also, where combustible materials are present in the fabric of balconies or the exterior building façade, the risk of the spread of fire is increased. Fire can spread up and across a building and spread through windows. Coupled with burning debris, fire can spread down and across to other neighboring properties causing risk to the lives of residents.

Where does the responsibility lie in respect of balconies?

It is important to establish where the responsibility lies in respect of works required.

A balcony that is not demised will be the responsibility of the landlord or management company to repair and maintain. Access must therefore be sought to carry out works and the ability for gaining access also considered.

Where the balcony is demised to the lessee, the extent of the area should be considered in detail. The demised area of the balcony may only include the surface layer or could extend further to the lower membrane. It is unlikely, but not unheard of, to include the structural parts of the balcony itself but this will depend on the specific lease terms.

Any works carried out to parts of a balcony that are demised without the consent of the lessee will amount to a trespass subjects to the rights within the lease. Depending upon the nature of the works and what is required, access to the structural elements of the balcony may require access to the area demised.

Access for testing materials and to carry out works

Access will be required to a balcony to inspect and test the materials and potentially carry out works.

Usually, a balcony can only be accessed via the flat to which it is attached to – unless scaffolding, cradles or the use of abseiling equipment is used. 

Regardless of the contractors’ preferred method, any access to a balcony will interfere with a lessee’s use of the balcony and consent will usually be required from the lessee. If the lease makes provision for access, the process set out in the lease should be adopted.

If required, access injunctions should be considered where express consent to access cannot be secured.

Works to the building surrounding a balcony

Buildings that require works to the external façade surrounding a balcony may require access over, or may require restrictions to, the use of a balcony whilst works are ongoing.

Any scheme of works will need to comply with health & safety legislation. Works to the external structure of a building will require contractors to work at a significant height and compliance with the Working from Height Regulations will be necessary.

Contractors may require that lessees’ access to their balconies be restricted whilst works are taking place. Lessees should be informed of the restricted use of their balconies and the reasons why this is required.

Landlords and/or management companies should ensure that communications are clear regarding why lessees are advised not to use their balconies for the limited period of time when essential works are being carried out.

The correspondence should leave no doubt as to why the works are required and provide estimated timescales.

The Service Charge

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 be a service charge and the repair, maintenance or improvement of demised areas will be the responsibility of the lessees and lease covenants may need to be analysed.

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 and possible clarification from the First-tier Tribunal should be sought.

Lease Regulations

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, barbecues or storage of combustible materials. 

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 a breach, action may be taken.

Summary

In conclusion, what is clear, is that the implementation of the MHCLG Advice Note (and the requests of contractors to carry out works on a practical level) is dependent upon the ownership of the balconies, access requirements, the possible restriction of use and the extent to which the landlord or management company can rectify issues of combustible materials being present in or around a balcony.

Each building and each lease will be case specific where provisions are not fundamentally clear, legal advice should be sought.