A previous Property Clinic addressed a query concerning the planned government remediation scheme in relation to defects in apartment developments. (“Am I being charged too much for the fire-safety upgrade works in my apartment building?”) The response noted that draft legislation is planned on this. The answer stated: “Information provided to date states that the scheme will apply to apartments and duplexes built between 1991 and 2013.”
My question is why apartments built before 1991 are not included? Many people in apartments from that era are elderly and, if they are not included, they could have to pay large sums to make their buildings compliant with fire-safety regulations. Some reports say it could be €25,000 per property.
By way of update on the proposed scheme, the Department of Housing launched an “interim remediation scheme” in December 2023. This is being managed by the Housing Agency. Draft legislation for the full remediation scheme is expected in the first half of 2024.
The press release issued at the launch of the interim scheme again noted that the planned full scheme (and the interim scheme) relates to apartments and duplexes constructed between 1991 and 2013.
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While we will have to wait for the legislation, my understanding is that the logic for the 1991 start date links to building regulations. The Building Control Act of 1990 introduced new requirements on fire safety, and a fire-safety certificate (FSC) was required for any apartment block built after 1992.
An FSC is a certificate issued by the Building Control Authority which states that the works or building to which the application relates will, if constructed in accordance with the plans and specifications submitted, comply with the requirements of the building regulations.
As such, for apartment developments constructed from 1992, an FSC (and associated documentation) sets out the strategy that was being adopted for fire safety in the development and provides information as to how this strategy would be achieved. The use of the year 1991 may be to cover developments that had begun their planning process in advance of the legal requirement to have an FSC from 1992.
In relation to what constitutes a “defect”, the 2022 report of the working group in relation to defects in apartment buildings stated: “A fire safety defect means a defect that is attributable to defective design, defective or faulty workmanship, defective materials (or any combination of these), that is in contravention of the requirements of part B of the building regulations at the time of construction […]”
As such, it seems the approach being taken is that a FSC will be required for the defects scheme as this sets out the strategy and standards that should have been achieved in a particular residential development. For a pre-1991 multiunit development built, ie one that does not have a FSC, there is no strategy or standard against which to benchmark the actual situation that now exists and therefore to define any “defects”.
You are correct that there is a certain arbitrary element in relation to 1991 but, without the logic of using the FSC as a benchmark, it would be difficult to put any limit to the scheme in relation to construction of multiunit (or indeed single) properties over the years.
Finbar McDonnell is a chartered property manager and a member of the Society of Chartered Surveyors Ireland
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