Lehner v Lant Street: useful guidance in cladding remediation law

Cladding remediation is still moving at a slow pace, but we are starting to see several judgments which show signs of progress being made.

Charlotte McMurchie, partner and head of our real estate dispute resolution team, summarises and reflects on one of these judgments.

Background

The Courts and Tribunals have been busy pushing though useful decisions around cladding remediation. To date, these tally more than seven since the Building Safety Act 2022 (BSA) was brought into force.

The more litigation we have, the increase in judicial thinking on the issues and the provision of timely guidance in the form of user-friendly judgments.

The award for the most helpful judgment so far must go to Martin Rodger and Peter McCrea of the Upper Tribunal in the Lehner v Lant Street Management Company Limited case.

Up for consideration were the leaseholder protections within Schedule 8 of the BSA with an appeal of a First Tier Tribunal decision.

By way of a quick recap…

The BSA includes provisions to protect those leaseholders who hold qualifying leases from having to pay some or all of the service charges attributable to costs of attending to relevant defects – i.e. building defects that arise as result of any act or omission in connection with relevant works and can include anything that was done or not done when providing professional services.

In the judgment of this case, Messrs Rodger and McCrea gently take the reader through the purpose of the legislation, the key definitions and a summary of how the legislation is to work.

Bearing in mind that the BSA has been heavily criticised for the impenetrability of its drafting in many parts, this judgment is a welcome read for anyone interested in this area.

A handy checklist

The real jewel in this judgment is, however, the identification of an unfolding sequence of questions that are invaluable to those wanting to understand if service charges are payable in relation to work where the leaseholder protections provided by the BSA might apply.

This step by step guide starts at paragraph 45 of the judgment on page 10 through to page 12.

It is a short read and, rather like GSCE revision guides where the original text lacked resonance, will come into its own when tackling the knotty question as to liability for service charges in a BSA context.

I encourage you to read the full judgment as I can see no merit in my repeating the question sequence when it can be found in all of its splendour with just one click!

For more information on anything discussed in this article, contact Charlotte using 0191 211 7979 or [email protected].