For social housing providers managing a portfolio of defective buildings, one issue is repeatedly determining whether the cost of remedial works, especially in fire safety cases, can be recovered under a building warranty: has the threshold of “imminent damage” or “imminent danger” been met?
This is not an abstract legal question. All too often it goes directly to:
- whether insurers will fund essential remediation;
- whether works can be undertaken proactively, or must be delayed; and
- how risk to residents is managed in the interim.
In practice, providers are often forced into an uncomfortable position—act and risk refusal of cover, or delay and expose both residents and the organisation to significant risk.
Two Technology and Construction Court decisions—Zagora v Zurich and Vivid Housing v Allianz—provide important guidance and signal a shift towards a more realistic and policyholder-friendly approach.
Why “Imminence” Matters in Practice
After the initial two-year developer liability period, building warranty cover becomes significantly narrower.
Where insured defects have not yet caused physical damage, policyholders typically need to show:
- damage occasioned by the defects is imminent, or
- subject to the scope of cover taken out, that there is an imminent danger to the occupants.
For social housing providers responsible for large residential portfolios, this creates a real-world dilemma:
- intervene early, and insurers may argue the threshold is not met;
- intervene later, and there is potential exposure to
– health and safety risks;
– regulatory scrutiny; and
– breaches of Policy obligations to maintain and mitigate.
Two High Court decisions provide guidance.
Zagora v Zurich (2019): The Starting Point
In Zagora, the Court considered serious defects, including fire safety issues.
It confirmed an important distinction between:
- actual damage or danger – where a building element is already unsafe; and
- imminent damage or danger – where failure has not yet occurred but is sufficiently likely.
Crucially, the Court made clear that policyholders do not need to wait for damage or failure to occur before cover is engaged.
In Zagora, the Court sought to explain the meaning of “imminent”, indicating that it requires more than a theoretical or remote possibility—there must be a real risk of damage arising in the foreseeable future, even if the precise timing cannot be pinned down. However, the guidance was ultimately impressionistic rather than operational, leaving considerable room for argument in practice.
That lack of clarity has been readily exploited by insurers, who have often sought to push the threshold towards something approaching impending failure. The result has been a persistent disconnect between the Court’s stated intention—that policyholders need not wait for damage to occur—and the way the test is applied in practice.
It is against that backdrop that Vivid Housing v Allianz assumes real importance, as the Court moves towards a more structured and commercially workable articulation of “imminence”.
Vivid Housing v Allianz (2025): A More Practical Approach
The Court in Vivid Housing provided helpful clarity.
It confirmed that:
- “imminent” includes a timing element—damage must be likely to occur “sufficiently soon”;
- but policyholders do not need to show that the trigger event (e.g. a fire) is itself imminent.
This is particularly significant for external wall and fire safety claims.
The Court recognised a practical reality:
Fire is an ever-present risk. Where defects would lead to catastrophic consequences in the event of fire, the requirement for imminence can still be met.
This avoids an artificial and unworkable outcome where cover would only respond when a fire is effectively about to occur.
Case Opinion: Challenging a Common Insurer Position
A recurring insurer argument, especially in fire safety cases, is that:
- unless the policyholder can demonstrate that a fire itself is imminent, there can be no imminent damage or danger.
In practice, this is a position frequently taken—and frequently used to resist claims.
Such an approach is, in the opinion of this author, ultimately flawed.
If correct, it would require building owners to:
- delay remedial works until the risk becomes acute; or
- proceed with works without certainty of recovery.
That is not commercially workable, and it cuts across basic risk management obligations.
It is also inconsistent with the principle that insurance policies should be interpreted to give effect to the cover they are intended to provide, not in a way that renders that cover illusory.
The approach in Vivid Housing is therefore a necessary and welcome correction.
Fire Safety Defects: The Proper Focus
In fire safety cases—whether involving:
- external walls (e.g. combustible materials, missing cavity barriers), or
- defective internal fire safety arrangements;
the correct question is not whether a fire is imminent. It is whether the building’s fire safety systems will perform as intended in the event of a fire.
If they will not:
- there is an imminent danger to occupants, because the building cannot safely contain fire, heat or smoke; and
- there is an imminent risk of damage, because any fire is likely to result in serious or catastrophic loss.
Put simply, if the fire safety strategy cannot function, the risk is already present.
What This Means for Building Owners and Social Housing Providers
The combined effect of Zagora and Vivid points towards a more workable position:
- “Imminent” does not mean immediate
It requires a real and proximate risk—not something that must materialise within days or weeks. - Fire safety defects are treated differently
The constant risk of fire means the imminence threshold may be satisfied more readily. - Courts are adopting a purposive approach
There is increasing judicial resistance to interpretations that undermine the value of building warranty cover.
However, all cases turn on their own facts and the scope for uncertainty remains. Insurers are likely to continue testing the boundaries, particularly in borderline cases.
Conclusion
For building owners and social housing providers managing defective buildings, including those with serious fire safety defects the concept of “imminent damage” and “imminent danger” is often the gateway to recovery under building warranties.
While Zagora established the framework, Vivid Housing v Allianz represents a meaningful evolution. It confirms that:
you do not need to wait for disaster to be on the verge of happening before taking action.
That is a critical clarification for organisations balancing:
- resident safety,
- regulatory obligations, and
- financial recovery.
The direction is clear:
Courts are moving towards a more practical and policyholder-focused interpretation of “imminence”.
But the issue remains highly fact-sensitive—and getting it wrong can have significant financial consequences.
Revisiting Previously Declined Building Warranty Claims
Many social housing providers have already proceeded with fire safety remediation after insurers declined cover on the basis that there was no “imminent damage” or “imminent danger”.
Those decisions should not necessarily be treated as the final word.
Even where works have been completed and funded internally, it may still be possible to challenge the insurer’s refusal and pursue recovery under the policy – particularly where that refusal was based on an unduly narrow interpretation of “imminence”.
The decision in Vivid Housing v Allianz provides a useful and practical tool in this context. It strengthens the position that policyholders are not required to wait for a crisis point before cover is engaged, and may open the door to revisiting previously rejected claims.
About the author
Greg Carter is a Partner in the Construction Team at Winckworth Sherwood LLP. He specialises in building safety and complex building defect claims, with particular expertise in building warranty disputes and insurer litigation. If you would like to discuss any of the issues raised in this article, please feel free to contact him.
Disclaimer
This article is intended for general information purposes only and does not constitute legal advice. Specific advice should be sought in relation to particular circumstances.