The decision

The RO was granted some 11 months later. This indicates that applications for ROs will likely be determined expeditiously by the FTT – certainly by comparison to High Court proceedings. The FTT process will be at a comparatively more efficient and cheaper for applications to get results. The key points of interest arising from the decision are as follows...

Application of the Legislation

The Tribunal acknowledged that the BSA is deliberately drafted broadly for it to work for leaseholders.

Burden of Proof

The Respondent argued that the burden of proof was on the Applicants to establish the existence and extent of the defects.

Expert evidence and site inspection

The Applicants did not, surprisingly, adduce their own expert evidence to establish a “relevant defect”.

Date on which a “relevant defect” creates a “building safety risk”

Under section 120 of the BSA, a “relevant defect” is one which “a) arises as a result of anything done (or not done) … in connection with relevant works, and b) causes a building safety risk.”

Scope of Works

The Tribunal recognised the importance of a RO specifying the required scope of works so that the Respondent knew exactly what it should do to remedy the defects.

Standard of remedial works

The Respondent proposed that any RO should require remediation of any defects in accordance with the standards required by the Building Regulations applicable at the time of the original construction.

“Specified time”

Section 123 of the BSA requires the Tribunal to determine a specified time by which the remedial works should be completed.

Section 20C of the Landlord and Tenant Act 1985 (“LTA”)

The FTT is a ‘no-costs’ forum meaning that the default position is that each party bears its own costs of proceedings before the Tribunal.

Other relief sought

The Applicants sought various other remedies which were considered but ultimately rejected by the Tribunal.

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