Form ESW1 – where are we now?

The Law Society recently published a new guidance note - Building Safety for flat buyers.  This note explains some of the key issues that buyers need to consider when purchasing leasehold flats including the EWS1 form.  Unfortunately, there are still issues with this form that are causing confusion and delay in leasehold transactions.   

 I have previously written about the EWS1 process here.  EWS stands for external wall system and the EWS1 form was simply intended to be a standard way of recording what assessment had been carried out for the external wall construction of residential apartment buildings.  The EWS1 process was developed in December 2019 by RICS, UK Finance and BSA.  It originally applied only to  buildings over 18m in accordance with the government’s published advice at that time.  The government changed this advice in in January 2020 meaning that all buildings were potentially brought into scope and the RICS subsequently updated its guidance to surveyors to reflect this.  In July the government  published a ministerial statement and an independent expert statement stating that an EWS1 should not be required on buildings below 18 metres.

 The Law Society’s guidance notes the current uncertainty as to which buildings require an EWS1: “We understand from RICS that its guidance remains in place and that its advice to its members is that they should continue to follow it until RICS has more clarity about the government documents and their impact on its guidance”.  The current position continues to cause considerable stress and frustration to many flat owners who are trying to sell or re-finance their properties (even where the building is less than 18 metres tall).  

 Solicitors are not qualified to advise on the physical structure of buildings nor on related fire safety matters.  However, they should be able to help clients find out whether a particular building has an EWS1 form already and should ask appropriate questions of the landlord or managing agents in relation to fire safety.  Solicitors in particular should understand the full background to the EWS1 process and the current position if they are to be able to help their clients. It is vital that this issue should always be considered at an early stage of any proposed transaction. 

 The Law Society’s guidance note is a useful summary of the key points that buyers should consider in relation to building safety when purchasing a leasehold flat.  However, despite the recent ministerial statement the government does need to liaise with the RICS in order to bring much needed clarity to this matter as it is only until the RICS have considered the impact of the announcement with expert stakeholders that they will be in a position to decide whether their present guidance should be reviewed.