EWS1 Form - Key Points for landlords and tenants
In the wake of Grenfell, fire safety has become a crucial topic and rightly so. Form EWS1 was developed in December 2019. It is a record of the fire performance of materials used in external wall systems; cladding being a key thing to record. Here are some important areas to note when considering the implications of Form EWS1 that are relevant to both landlords and tenants.
Who needs it and what for?
It can (key word being ‘can’ therefore it’s not obligatory) be provided to mortgage lenders or valuers to determine whether any remediation works that are required affect the valuation of the Property. The Royal Institute of Chartered Surveyors (RICS) have provided guidance on when Form EWS1 should be requested by valuers or lenders.
Is it necessary?
Not every building requires a Form EWS1; whether one is needed will depend on various factors, such as the height of the building, whether there is combustible material and the type and/or quality of the cladding.
The advice on when a Form EWS1 is necessary has fluctuated; the Law Society’s guidance notes suggest that members follow RICS guidance until there is more clarity.
Whilst not every building requires a Form EWS1, many lenders are still insisting on one but they must have a sensible and justifiable reason to ask; this is, therefore, challengeable if the reasons are not rationale.
For obvious reasons, the uncertainty over whether an EWS1 form is necessary is causing so many leaseholders stress and angst who are trying to sell or re-finance their properties (even where the building is less than 18 metres tall).
Can I request it if I am a tenant?
If you are a tenant and wish for a Form EWS1 to be carried out, then you ought to tell your landlord about their general duties in respect of health and safety. In accordance with the Fire Safety Act 2021 (not in effect as yet), a tenant could complain to the relevant fire authorities who could then issue an enforcement notice to remedy any fire-related issues, if the landlord refuses.
Who bears the cost?
If remedial works are required, as per usual, the starting point is the lease as to who bears the cost of these works. Most leases will include a service charge provision which includes repairs to common parts in the block and remedying any inherent defects; cladding is likely (and has) been deemed as an inherent defect. If there is such a clause, then the tenant would be liable to pay; this has caused much of an uproar amongst many leaseholders who have argued that cladding repair costs should not fall on them but this is where we are at the moment.
Sometimes, depending on the value of the works, landlords may need to instigate the section 20 consultation process, under the Landlord and Tenant Act 1985 as amended. This is a process whereby the landlord has to consult with the leaseholders through a process before a charge is applied.
Ultimately, leaseholders are primarily responsible. Whilst there is a Building Safety Fund to support the removal of unsafe cladding from the most dangerous high-rise buildings, it appears to apply to relatively few buildings. Even if a grant can be obtained, the allocation of costs to cover the works might not be enough.
You may be wondering about insurance; not all remedial works are covered by buildings insurance; we recommend that tenants thoroughly check the freeholder’s insurance policy.
We are seeing more and more disputes between landlords and tenants when it comes down to who bears the cost; The BLM Property Litigation team is well-equipped to help navigate through these issues, particularly with checking if a grant is available, service charge disputes including section 20 consultation issues.
It cannot be assumed that if a building has an EWS1 form, that lenders will be satisfied as the form has several ratings; some ratings are suitable for certain lenders while some are not. Ratings can also be revised following a re-assessment of the building. This is another reason why so many leaseholders are struggling to sell properties.
How long is the form valid for?
Form EWS1 is valid five years from the date it is signed. However, a new assessment might be required in this period if substantial works have been completed and they now affect the original conclusions.
Cladding costs can be astronomical and it is important that legal advice is sought on how best to ensure your building is safe and what the lease says about parties obligations, particularly with who bears the brunt of the remedial costs.
Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.