You should all have received a Section 20 (S20) Notice of Intent from Notting Hill Genesis (NHG) a few weeks ago related to the fire safety works planned for the building, inviting us to provide any comments by 17th August 2021.
This notice informs leaseholders that there is a possibility that an application to the Government’s Building Safety Fund to cover ‘future proofing’ fire safety works may fail, in which case the notice informs us that these costs may be charged to leaseholders.
From previous correspondence received from NHG on 3rd June 2021, these costs are currently estimated at over £4 Million, which means that if the building safety fund application fails, NHG may try and charge leaseholders approximately £60k per flat.
This is a shocking U-turn on what we have previously been told by Notting Hill Genesis, and goes against the hard work that the Resident’s Association has been doing over the last 18 months to ensure no costs are passed on to leaseholders.
Whilst the communication from NHG states that this is a last resort – NHG is undoubtedly trying to take legal steps to enable them to charge this outrageous sum onto leaseholders. We must now work together again to raise funds to counter this notice.
Raising funds to counter the S20 Notice of Intent
In short, we need expert legal help to counter NHG’s attempts to pass the cost of what is deemed unnecessary work on to us.
This will require a shared fundraising effort from us all to pay for the legal fees, amounting to £100 per flat. This is far less each than was needed when we fundraised last year, and considerably less than the £60k each we may otherwise be left with as a cost.
We have already had informal conversations with a number of law firms, to understand our lawful position to counter NHG and obtain a variety of quotes for legal costs. We have been told we are in a strong position to block these costs, and found a law firm (Strain Keville LLP) that we believe represents the best value for money.
Explanation of Our Current Position
While it is correct that necessary maintenance of Zenith Close is charged to leaseholders through their service charge, the terms of our lease specify that this work "must be reasonable".
It is our strong belief that the "future proofing" work proposed in NHG's £4 million program is NOT "reasonable". It isn't even necessary. We will not be made to pay £60k each for work that is not required as this is simply not reasonable.
When Hill finish their repairs to the cavity barriers our building will be compliant to the necessary building regulations, and we will qualify for the EWS1 form that will allow us to sell or remortgage our flats. The further £4M of ‘future proofing’ work is simply not required today from both a legal and safety standpoint.
We want to press this point home in a firm manner, backed by expert legal representation. As a starting point we need our lawyers to respond to the Section 20 notice served on us, as to leave this unchallenged may be accepting liability for these costs.
To enable us to respond, we ask that each flat contributes £100 to cover costs ASAP, if they are in a financial position to do so.
We appreciate the huge support we received last year when we fundraised to obtain legal support, and were delighted to be able to return those funds when NHG confirmed we would not have to pay for the works currently taking place. We believe we can be successful again, if we all work together.
Overview of what’s been happening over the last 18 months
Building Safety Background
You may be aware that members of the Zenith Close Residents Association have been in discussions with our Freeholder Notting Hill Genesis (NHG) over the last 18 months regarding the fire safety of our building and the process of achieving a pass on the EWS1 form, without which none of us can sell and our flats are valued at £0.
Last year a survey of our external wall revealed issues with our horizontal cavity barriers and we pressed NHG to hold our original developers, The Hill Group, accountable for this defect. Following negotiations, Hill returned to the building to repair this defect and undertake other minor work in December 2020.
In the interim time, following evidence given at the Grenfell Inquiry, concern grew around the safety of K15 insulation, which surveys have shown we have in our cladding. Although the presence of this insulation raised a concern, it did not necessarily however make the building unsafe. Further to this, in order to avoid the need for unnecessary remediation work, NHG and Hill conducted a 'rig test' to see how the building would perform in the event of a real fire, to understand if any further work would be needed or if the insulation could remain in place. This is an accepted practice that is widely used in the building industry, and involves building a replica of a building's walls in a lab and setting fire to these to inspect their ability to withstand a blaze.
The rig test for Zenith was undertaken in February 2020, following which NHG reported in March that the test was successful and our walls had passed. This was confirmation that the K15 insulation did not have to be removed in order for us to achieve a pass on the EWS1 form and an acceptable level of fire safety.
Following this, it had been our understanding that 15 Zenith Close would be safe and ESW1 certified at the conclusion of Hill’s current remediation work which had been due to finish around October 2021. It was confirmed on many occasions that Hill would fund this work and no costs would be passed onto leaseholders.
NHG’s application to Government’s Building Safety Fund
Ticking along in the background throughout all of these developments, NHG had submitted an application to the Government's Building Safety Fund. This fund had been created to pay for the remediation of high-rise buildings.
A few months ago, NHG revealed to us that their application to this fund had been approved in principle and that it included the replacement of the K15 insulation and other 'future proofing' work across the building – even though these are not currently required following our successful rig test.
The total programme of these works under the building safety fund package stands at over £4 Million Pounds. On calls with the Residents Association, NHG suggested that this program of work would only go ahead if it was paid for by the fund as there are several steps still between today and getting final approval for funding.
However, as a quirk of the funding, NHG are required to begin this work before 30th September 2021, at which point it is unlikely that they will know if they have the funding or not. Further to this, NHG have served a Section 20 notice on residents to try and create a position where these costs could be passed to us if the funding fails, despite the fact that these costs are not reasonable under the service charge.
We find ourselves in an unfortunate position again but we do believe that this may be one of last obstacles we have to overcome to finally certify the building and move on with our lives. Please, if you can, contribute to the legal fund.
With the funds in place, we will instruct the lawyers on your collective behalf, and issue the rebuttal to the S20 Notice of Intent by the 17th August 2021. If for whatever reason we raise more money than was required for the legal costs, the remaining funds will go to the Residents Association to cover activities we organise such as events and improving the estate.
Many thanks in advance,
The Zenith Close Residents Association.
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