We use cookies to allow us and selected partners to improve your experience and our advertising. By continuing to browse you consent to our use of cookies. You can understand more and change your cookies preferences here.

1 September 2021

Your rights if you live with cladding and other building safety defects

Where do you stand if you live in a block of flats deemed unsafe? Our guide explains what you can do if your home is affected by unsafe cladding and other fire safety defects.
Which? Team

Following the Grenfell Tower disaster, the fire safety risks associated with cladding have seen huge bills piling up for flat owners. It has also become extremely difficult to sell or remortgage your flat, should you live in a building found to have serious fire safety defects.

In this guide we look at the practical steps you can take if you're affected by fire safety flaws and how to seek remediation. 

We also include advice on selling your property to a cash buyer, as well as some useful links and contacts for those struggling with the financial and mental health impact of living in a building deemed unsafe.

Who is responsible for building safety?

Building owners or the responsible entity, such as a management company, have legal responsibility for the repair, condition and safety of their buildings. 

This legal responsibility applies to the removal and replacement of unsafe cladding systems and other fire safety risks.

Unfortunately, while freeholders, managing agents and building owners have a legal requirement to organise the remediation of building safety issues, they don’t have to pay for the work. There is currently no legislation saying that the remediation costs can't be passed on to leaseholders.

What steps to take if you're concerned about cladding and building safety

Steps to take if your building is deemed 'unsafe'

  1. If the cladding on your building is unsafe or you’ve been warned about other fire safety defects, then seek confirmation as to what steps your building owner will take to remediate this and how they plan to fund the work.
  2. If your building owner is not taking action to remedy a fire safety risk, you can notify your Local Authority, the Fire and Rescue Service and the Department of Housing, Communities and Local Government (MHCLG) for advice.
  3. If your building owner isn't cooperating and is unresponsive, try reaching out to your neighbours - we’ve heard from some leaseholders who found that banding together with other residents saw action being taken faster compared to when they acted alone.

Building Safety Fund

To address the removal and replacement of unsafe cladding from buildings over 18 metres (over six storeys), the government initially set up a £5bn ‘Building Safety Fund’ allocated for this work. 

The deadline for registering for the funding has now passed, but the government has since announced a loan scheme outlining that leaseholders should pay no more than £50 a month towards cladding removal. However, this scheme is yet to be introduced and it may not cover costs other than for unsafe cladding. It is expected that the scheme will cover buildings between 11 and 18 metres.

External Wall Safety Assessments or EWS1 forms

If you plan to sell your property, mortgage lenders now require safety checks before you can start the selling process. 

The check they require is called an External Wall Safety (EWS) assessment which must be requested by the building owner (freeholder) or managing agent and carried out by a qualified surveyor. If your building passes the review, known as an EWS1 form [PDF], you should be able to progress with a valuation of your property, but if your building fails, leaseholders will likely find the property harder to sell until the issues have been fixed. 

EWS1 forms are not a legal requirement but instead a lender requirement. The government has specified that EWS1 forms are not required for buildings under 18 metres, but lenders are still asking for them. This means banks won’t lend to people wanting to buy the property if the building it is in is deemed unsafe. This also means that the building owner cannot be made to have an EWS assessment carried out.

The assessment can be expensive - we’ve seen reports of leaseholders having to pay anything from £10,000 to £50,000, and sometimes more. Freeholders can also pass these costs on to leaseholders as part of their service charge.

In Wales, the government has announced that it will fund fire safety surveys for multi-occupied buildings over 11 meters. These surveys will include cladding and other safety defects.

In England, the EWS1 survey needs to be requested by the building’s freeholder, while in Scotland, under commonhold agreements, property managers need the majority of flat owners to approve the survey. The survey outcome remains valid for the entire building for 5 years after the point of issue. 

What can I do if my building owner refuses to have the assessment?

It is the building owner’s responsibility to ensure that external wall systems are checked and are safe for the building’s inhabitants. The Department of Housing, Communities and Local Government has explained that building owners have a clear responsibility to arrange for external walls to be checked and to keep avenues to remediation open. 

If your building owner refuses to undergo the survey but you’re worried your building is a fire risk, you can contact your local council’s environmental health department to raise your concerns. The council can arrange for an inspector to come and check your home for safety risks. You can also contact the Fire and Rescue Service for their opinion as to the fire safety of your flat.

Under the Housing Act 2004, Local Authorities have the power to enforce emergency remedial action if they know of a potentially dangerous building that has no plans to remediate the danger. 

EWS1 and scamming risks

Which? has found confusion around cladding regulations and External Wall Safety assessments is being exploited by scammers, who are stealing thousands from leaseholders. 

Unqualified and uninsured scammers have undertaken External Wall Safety assessments without the right to do so, often forging the names and signatures of qualified surveyors to pass and fail buildings. 

Some forms we’ve seen have been signed off by surveyors who simply don’t exist. Adding to the issue is the low number of qualified assessors in the country able to carry out the surveys coupled with huge demand. 

The implications of faked forms could be huge, potentially voiding mortgages and home insurance policies which have been agreed on the back of false documents. 

Banks and building societies have measures in place to help protect people from fraud. If you think you might have been scammed and you have lost money, you should contact your bank. 

If you find out your EWS1 form is fake, you can report it to the police and Trading Standards. 

You can check the signatory of the form with the profession’s central institution, or find out who is a member of the Royal Institution of Chartered Surveyors (RICS) on its website. 

How to find a qualified engineer

Qualified surveyors and fire safety specialists are in short supply, but it's important they're qualified as banks won’t mortgage properties unless a fire safety expert has signed off on the safety of a building.

The EWS1 form has two assessment options: A or B. 

Depending on which option is chosen, the assessor will need different levels of expertise to make a judgement on the materials used in the construction of different buildings.

  • Option A - materials in the building would be ‘unlikely to support combustion’. For Option A the assessor should have the expertise to identify relevant materials and whether fire resistant barriers and other fire stopping measures have been installed correctly. Where combustible materials are present in your building you will need a chartered (CEng) or incorporated (IEng) engineer registered with the Institution of Fire Engineers (IFE). 
  • Option B - combustible materials are present in external walls. For Option B the surveyor has judged that a more detailed review of the materials needs to take place. To make this call, the surveyor needs expertise in fire risk assessments and should be a member of a relevant professional body within the construction industry.

You can also find surveyors and other qualified building safety professionals on the IFE or RICS websites.

Assessors completing the form also need to have Professional Indemnity Insurance, to ensure they are covered for any damages. You can ask to see their certificate.

Other fire safety aspects

While the Building Safety Fund only covers the removal of external cladding systems, there are a range of other fire safety defects that it doesn't cover. These other defects can still contribute to a building being deemed unsafe. 

Safety defects that may need remediation but are not covered by the fund include:

  • Missing fire breaks - fire breaks are gaps in combustible material that are meant to slow the progress of fires.
  • Combustible balconies - balconies made with combustible materials can contribute to fires spreading on the external wall of residential buildings.
  • Unsuitable fire doors - fire doors are meant to slow the spread of fire inside a building. Fire doors need to meet a minimum fire performance standard before they are installed.
  • Timber balconies or walkways - if your residential balcony is constructed from timber they may also present a fire risk.

If you’re unsure about whether your building has any of the features listed above, contact your freeholder or building developer who should inform you of the materials used. 

If you live in a new build property, you can read further down in this guide about the action you can take to seek remediation for safety defects.

'Waking Watch' costs

When your building gets a bad EWS1 rating the building owner may be required to install a ‘waking watch’ immediately. This is where wardens patrol common areas for signs of fire. 

Waking watches can be costly and the fee can be passed onto leaseholders at short notice. 

The government has set up a £30 million ‘waking watch fund’ which covers the installation of fire alarm systems in high-rise buildings that need cladding to be removed. The fund is there to install fire alarms to remove the need for a ‘waking watch’, it does not help fund the ‘waking watch’ itself. Government guidance explains that fire alarm systems cannot be used in isolation, and should be implemented as a part of fire safety measures. Contact your managing agent or building owner so they can arrange the installation of a fire alarm system and other safety measures.

It is a legal requirement to have a ‘waking watch’ put in place if you’re told your building needs one by the Fire and Rescue Service. Your freeholder can choose to pay for these costs but, as of yet, there is nothing stopping them from passing this cost onto leaseholders.

Note: You need to have already registered to be able to receive some of the grant as the application process has now closed.

Insurance premiums and unaffordable bills

According to recent Which? Research, buildings insurance for leaseholders living in residential flats have increased by an average of 500%, leaving some leaseholders paying more than £3,000 a year.

Government help doesn’t extend to covering insurance costs for those living in affected flats. Buildings insurance for flats is another lender requirement as banks will not offer mortgages on properties that are not insured, so leaseholders have no option but to pay up.

Freeholders and building owners are responsible for choosing buildings insurance and can pass the cost to leaseholders. 

Leaseholders can appeal to their managing agents to prove that they have obtained and compared quotes from insurance providers. This is so leaseholders are aware of what is included in any potential costs.

If you would like to know more about the difference between leasehold and freehold you can read our dedicated guide. 

Safety defects in new builds

If you buy a new build home and find safety issues after you move in you do have options.

You should report any safety issues to the developer who built the flat. Under the 10 year warranties, that usually accompany purchases of new builds, developers are obliged to sort defects reported to them in the first two years. If the developer is unhelpful or unresponsive you might be able to make a complaint under the Consumer Code for Home Builders and raise the defect with the warranty provider.

Developers who are signed up to the Consumer Code for Home Builders are required to have a system for dealing with complaints. Anyone who bought a new build home on or After 1 April 2020 should be made aware of their rights under the code before they move in and should also be given details of how to access dispute resolution arrangements.

If your flat was completed within the last 6 years, you could seek advice from a solicitor about a potential claim against the developer under the Defective Premises Act 1972. At present, any such claim must be brought within the first 6 years after completion of the build, so the time limit is important. In 2021, the government proposed legislation that could see this time limit extended to 15 years.

If the developer has gone bust or been dissolved it could be more effective to bring a claim against the building’s freeholder.

You can read more about defects in new build leasehold and shared ownership property in this top ten questions and answers guide

Selling to cash buyers

As there has been a stall in the mortgage market around lending on affected flats, some leaseholders may be considering selling their properties to cash buyers.

Potential cash buyers will likely make offers below your flat’s would-be market value due to the building safety issues your flat has. The offer could even be lower than what you paid for your home, potentially leaving you in negative equity.

While accepting a cash offer could end the building safety nightmare for leaseholders, finding cash buyers through estate agents can be tough. The risks are high and the results may not always be worth it.

Unlike buyers who need a mortgage, cash buyers don’t need an EWS1 form to buy a property. Leaseholders should weigh up whether selling up to get out of the flat is worth the potential loss.

There are professional property buying companies and investors who can offer leaseholders cash sums to take the property off your hands if you want to sell your flat quickly. However, we've heard of property ‘sharks’ approaching leaseholders on Facebook offering to buy their flats. These ‘sharks’ could be sourcing deals for other buyers without telling them the risks. Avoiding these rogue companies involves doing some research.

We recommend checking the Property Ombudsman register to ensure a professional cash buying company is registered. You should also get an independent solicitor to check any contracts these companies may offer you if you do choose to go down this route.  

Financial, emotional and mental health support

If you’re dealing with the remediation of cladding and other building safety issues, you’re not alone. 

An Inside Housing survey estimated that there are over 1,700 buildings potentially affected by the issues raised above. The actual number of buildings affected is likely to be far higher with at least four million people impacted.

If you need information about how your lease could be impacted, what steps you can take to remedy a building or fire safety issue then you can visit the LEASE website.

If you’re a leaseholder bearing the financial burden of making a building safe, there are places you can turn to if you need advice or someone to talk to. The debt charity StepChange offers free debt and financial advice to help if you feel unable to cope.

If the stress of living in an unsafe building is causing your mental health to deteriorate and you would like someone to talk to, both Samaritans and Mind offer free, anonymous and impartial support.