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Fire escape/balcony

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CryptoPlankton
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Fire escape/balcony

#417023

Postby CryptoPlankton » June 3rd, 2021, 11:24 am

I bought a top floor flat about 15 years ago. One of its biggest attractions was a room with French Doors opening onto an 8' x 4' balcony. The balcony is the top landing of a fire escape, but must have been designed as a balcony for the flat or it would surely have just been constructed as a smaller simple half-landing (it even has welded-in supports for window boxes around the perimeter)?

Anyway, through years of being in the hands of appalling management agents and generally poor communication between the leaseholders (I am one of four shareholders in a Residents Management Company) the fire escape has fallen into disrepair, and this has led to disagreement over what should be done. Only my flat and, to some extent the one below (you could climb out of the window onto it) have any use of the fire escape.

One of the other leaseholders wants to remove the fire escape completely and upgrade the flats with "lobbies" to enable use of the internal stairwell as the sole escape route. I am clearly unhappy about this, not only because of the potential loss of the balcony, but also the loss of peace of mind for the occupants in having an alternative route. Plus, I'm not sure how feasible it would be to reconfigure my flat to avoid having an inner room that contravenes the fire safety regulations.

The more popular proposal (with the other leaseholders!) is to repair the fire escape, but for me to cover the cost of replacing the balcony. (I think this means making up the difference between a fire escape with a standard small landing or with a full balcony (with the extra support that entails). Obviously, I don't want double doors leading out to a narrower landing so, if push comes to shove, I will have to agree to this.

I can understand the others' point of view, but I wonder where I stand legally? I bought a flat with a balcony, albeit part of the structure of the fire escape - there seems no doubt that the top landing was designed and built this way. Is there a case for sharing the costs for like-for-like replacement equally?

Any thoughts on the subject would be gratefully received! (I don't believe there is anything in the lease that helps.)

CP

Dod101
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Re: Fire escape/balcony

#417035

Postby Dod101 » June 3rd, 2021, 11:43 am

My immediate reaction is that it is certainly sensible to have the fire escape repaired so that it is safe and in good order, irrespective of what the fire regulations may say. Otoh, you appear to be the sole beneficiary of the extended balcony so that an additional contribution from you to the cost seems reasonable. The others would surely be right in otherwise insisting on the smaller platform which comes with the fire escape it would seem.

Dod

pochisoldi
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Re: Fire escape/balcony

#417091

Postby pochisoldi » June 3rd, 2021, 3:29 pm

CryptoPlankton wrote:I bought a top floor flat about 15 years ago. One of its biggest attractions was a room with French Doors opening onto an 8' x 4' balcony. The balcony is the top landing of a fire escape, but must have been designed as a balcony for the flat or it would surely have just been constructed as a smaller simple half-landing (it even has welded-in supports for window boxes around the perimeter)?

Anyway, through years of being in the hands of appalling management agents and generally poor communication between the leaseholders (I am one of four shareholders in a Residents Management Company) the fire escape has fallen into disrepair, and this has led to disagreement over what should be done. Only my flat and, to some extent the one below (you could climb out of the window onto it) have any use of the fire escape.

One of the other leaseholders wants to remove the fire escape completely and upgrade the flats with "lobbies" to enable use of the internal stairwell as the sole escape route. I am clearly unhappy about this, not only because of the potential loss of the balcony, but also the loss of peace of mind for the occupants in having an alternative route. Plus, I'm not sure how feasible it would be to reconfigure my flat to avoid having an inner room that contravenes the fire safety regulations.

The more popular proposal (with the other leaseholders!) is to repair the fire escape, but for me to cover the cost of replacing the balcony. (I think this means making up the difference between a fire escape with a standard small landing or with a full balcony (with the extra support that entails). Obviously, I don't want double doors leading out to a narrower landing so, if push comes to shove, I will have to agree to this.

I can understand the others' point of view, but I wonder where I stand legally? I bought a flat with a balcony, albeit part of the structure of the fire escape - there seems no doubt that the top landing was designed and built this way. Is there a case for sharing the costs for like-for-like replacement equally?

Any thoughts on the subject would be gratefully received! (I don't believe there is anything in the lease that helps.)

CP


Have the ManCo had a fire risk assessment carried out on the building?

Instruct someone to carry out the FRA, making it clear that the company is particularly concerned about "means of escape", and that any assessment should include an assessment of the practicality of upgrading the primary means of exit and dispensing with the escape ladder.
Such an assessment may come back with the verdict that the means of escape for the top floor flat requires a ladder, and that the means of escape for the flat below you is inadequate and requires upgrade.

Note that building regs may not permit this, and future changes to how fire risk is managed, may require reinstatement of the ladder a few years down the line.

If the escape ladder is required to be retained, the following questions need to be asked:

Are the "balcony" and "means of escape" functions separable? (i.e. if you remove/shrink the balcony, does your means of escape disappear?)
Is the balcony part of your flat according to the lease? - If it is, then removing it devalues your lease, and you should be compensated.
Does the lease make you responsible for maintaining the balcony? - if yes, then you may have to pay for that part that isn't a "means of escape".

I wouldn't be surprised if the balcony forms part of the structure of the building, and therefore should be maintained at the cost of all 4 leaseholders. (especially if you are paying more than 25% of the maintenance costs because your flat has a higher rateable value or greater usable floor space than the flats below)

HTH

PochiSoldi

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Re: Fire escape/balcony

#417094

Postby pochisoldi » June 3rd, 2021, 3:48 pm

Dod101 wrote:My immediate reaction is that it is certainly sensible to have the fire escape repaired so that it is safe and in good order, irrespective of what the fire regulations may say. Otoh, you appear to be the sole beneficiary of the extended balcony so that an additional contribution from you to the cost seems reasonable. The others would surely be right in otherwise insisting on the smaller platform which comes with the fire escape it would seem.

Dod


"sole beneficiary of the extended balcony" is a dead end.
You could argue that the cost of the ladder should fall on the 2nd and 3rd floors and the ground floor+1st floor leaseholders should pay nothing!
The other one is the common, but quickly dismissed, fallacy that only top floor flats derive a benefit from having a roof.

The reality is that, if it forms part of the structure of the common parts, most, if not all, leases will require all leaseholders to pay for its upkeep.

By way of an example:
I own a flat in a single block of 40 flats, 22 have a bay window in their lounge, 14 have a balcony, 4 have neither bay nor balcony.
Regardless of apportionment, the cost of dealing with the spandrel panels (=the infill panels that fill the space between the floor to ceiling bay windows) on ALL leaseholders., despite the fact that the panels only impinge on the 22 flats that have a bay window.

PochiSoldi

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Re: Fire escape/balcony

#417152

Postby Dod101 » June 3rd, 2021, 7:48 pm

I am not arguing except from common sense rather than any legal angle The law as they say is often an ass anyway. If the OP has a larger balcony than would be strictly required for a fire escape it seems to be right that he ought to pay a larger proportion of the costs than the others who do not benefit from his larger balcony. In this case, I think that common sense is often a better measure than reverting to the law, (if of course you are quoting the law) as it often is.

Dod

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Re: Fire escape/balcony

#417158

Postby mc2fool » June 3rd, 2021, 8:26 pm

CryptoPlankton wrote:(I don't believe there is anything in the lease that helps.)

Really? Take another look. Leases should define who is responsible for what, and while it may not mention the balcony explicitly it will almost certainly have some phrasing that covers it, e.g. external vs internal or the like.

Most leases also say that the freeholder can only charge the leaseholders for maintenance, not for improvements. E.g. if there's a fountain in the gardens and it breaks then repairing it is fine, but if there isn't they can't just add one and bill it to the leaseholders. In terms of the balcony that would mean repairing/replacing it as it was.

Also, if you're not already, make sure you are familiar with the Section 20 requirements. https://www.lease-advice.org/topics/?topic=section-20-consultation

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Re: Fire escape/balcony

#417342

Postby pochisoldi » June 4th, 2021, 3:08 pm

To reinforce the Section 20 comment...

Section 20 consultation becomes an irrelevance when all leaseholders agree to a charge.
This is because an application to challenge a service charge cannot be made to the Land Tribunal where the charge has been agreed or admitted by the leaseholder.

IMHO this will only tend to apply in cases like this where there are a small number of leaseholders.
Just one single hold out should trigger the S20 process, and even then, if the proposal is bulldozed through the dissenting leaseholder(s) can still approach the Land Tribunal (LT) to challenge the service charge, and they can also oppose any S20ZA request to the LT to dispense with consultation requirements.

So, if I were the top floor leaseholder, I'd never agree to anything other than a like for like replacement (plus any mandatory upgrading required) - i.e. new ladder+landing for top floor, and any enhancement required to bring the access for the flat below up to spec.

There is a risk that the other three leaseholders "gang up", and attempt to push through their proposal.

If they
a) fail to consult, get the work done, shrink the balcony, and then lose a S20ZA application or lose a LT validity challenge
or
b) fail to take into consideration the rights of the top floor leaseholder, and OP goes to the LT or other court, and OP wins
then the other three leaseholders could be in the chair for the costs, as they would almost be certain of acting "ultra vires" (i.e. exceeding their powers) whilst wearing their hats as directors of the manco/trustees of the service charge fund/joint trustees of a jointly held freehold etc.*

Ultra vires would probably lead to personal liability for the costs involved.

* Note the deliberate vagueness here - it's not clear whether the freehold is (a) owned by the leaseholders via ltd company, or (b) directly by the 4 leaseholders as "joint tenants", or (c) someone else and they are exercising their right to manage through a RTM company or other arrangement.
Either way, as a director, joint trustee, they have responsibility to other shareholders/beneficiaries/stakeholders to act reasonably and within their own powers.

If it gets to the stage where the OP is going to be "outvoted", then it makes sense to get a lawyer in - £500 on a lawyer (split 4 ways) before the event is peanuts compared to the costs afterwards.

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Re: Fire escape/balcony

#417346

Postby mc2fool » June 4th, 2021, 3:47 pm

pochisoldi wrote:Section 20 consultation becomes an irrelevance when all leaseholders agree to a charge.
This is because an application to challenge a service charge cannot be made to the Land Tribunal where the charge has been agreed or admitted by the leaseholder.

IMHO this will only tend to apply in cases like this where there are a small number of leaseholders.
Just one single hold out should trigger the S20 process...

I agree that the S.20 consultation becomes an irrelevance if all agree anyway, but AIUI you have to do one regardless, and the only way to avoid it is by asking the Tribunal for dispensation. As such the trigger is simply that the works will cost more than £250 per leaseholder, even if everyone already agrees.

We do it that way to be by the book, and in reality the 60 day delay (30 for Notice of Intention + 30 for Notice of Estimates) has never been an issue.

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Re: Fire escape/balcony

#417406

Postby CryptoPlankton » June 4th, 2021, 9:26 pm

Just to clarify:
pochisoldi wrote:* Note the deliberate vagueness here - it's not clear whether the freehold is (a) owned by the leaseholders via ltd company, or (b) directly by the 4 leaseholders as "joint tenants", or (c) someone else and they are exercising their right to manage through a RTM company or other arrangement.
Either way, as a director, joint trustee, they have responsibility to other shareholders/beneficiaries/stakeholders to act reasonably and within their own powers.


Sorry, I thought I had made it clear that it was (a).

Thanks for the replies, very much appreciated. I shall look into the points raised and, as the other leaseholders are generally pretty reasonable, hopefully we will come to a mutually agreeable solution.

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Re: Fire escape/balcony

#418484

Postby Clitheroekid » June 9th, 2021, 9:28 pm

CryptoPlankton wrote:(I don't believe there is anything in the lease that helps.)

It would be very surprising if the lease didn't resolve the issue. Most leases are reasonably clear as to the division of repair responsibility between the landlord and the tenant.

My gut instinct would be that the fire escape was an integral part of the building as a whole rather than just your flat, so that it would be the landlord's responsibility to repair it, recouping the cost from all the tenants through the service charge.

Have you had the lease looked at by a lawyer?

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Re: Fire escape/balcony

#418547

Postby CryptoPlankton » June 10th, 2021, 10:03 am

Clitheroekid wrote:
CryptoPlankton wrote:(I don't believe there is anything in the lease that helps.)

It would be very surprising if the lease didn't resolve the issue. Most leases are reasonably clear as to the division of repair responsibility between the landlord and the tenant.

My gut instinct would be that the fire escape was an integral part of the building as a whole rather than just your flat, so that it would be the landlord's responsibility to repair it, recouping the cost from all the tenants through the service charge.

Have you had the lease looked at by a lawyer?

Thanks for the reply, CK. The lease doesn't explicitly mention the fire escape staircase, but the relevant section appears to be:

"...the Landlord will maintain repair decorate and renew:

(a) The main structure and in particular the roof chimney stacks gutters and rainwater pipes of the Building

(b) The cisterns pipes wires ducts and flues in under and upon the Building and enjoyed by the Tenant in common with the owners and tenants of the other flats

(c) The main entrances passages landings and staircases of the Building so enjoyed or used by the Tenant in common as aforesaid and

(d) The boundary walls and fences of the Building


I have now received an update on the position held by at least one of the other leaseholders who has had a structural engineer look at the fire escape (and, I suspect, the others will agree). He has found that the existing fire escape can be repaired, but the existing top landing (my balcony) has been condemned and its design does not meet modern standards. He concludes:

"in order to retain the fire escape for the means it is intended, would entail a new design being carried out to provide the necessary structural supports for a new exit point from the top level French doors. The second part to this would be if CryptoPlankton wished to retain a balcony in the same manner as existing, would entail further design and works required.

NOTE: There is a fundamental point here that is important to raise, regardless of the fact the escape stair has fallen into disrepair, the structural design as existing is not fit for purpose, the Gallow bracket design in its current form does not meet current regulations and will not be certified as safe."


The crux of the matter seems to be that the "others" naturally wish to replace the existing balcony with, presumably, a basic top landing requiring less structural support than one the same size as my existing balcony. They have a mutually agreeable quote for the works to repair the fire escape in this way. The leaseholder above has suggested getting quotes for the design and build of a like-for-like replacement - at which point I suspect I will be asked to pay the difference as it would require a different design to the existing balcony. I would happily chip in more than the others, but would really like to know whether or not I am legally liable for the difference in costs.

If I feel their demands are unreasonable, I will certainly get someone to look at the lease in more detail!

Thanks again

CP


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