The Building Safety Act 2022 – Key Takeaways
07 July 2023
The Grenfell disaster led to the realisation that many buildings in the UK have historical fire safety defects that are either associated with their original construction or later refurbishment. In response, the Government introduced the Building Safety Act 2022 (“BSA”) which came into force from April 2022 and contains various leaseholder protections which exempt them, in certain circumstances, from paying any remediation costs.
We consider some key questions about the BSA:
1. I own a higher-risk building, what are my immediate obligations under the BSA?
A “higher-risk” building is at least 18 metres high or has at least seven storeys and contains two or more residential units. Owners/Accountable Persons (incl. owners/landlords/management companies) of “higher-risk” buildings must register the building with the Building Safety Regulator (“BSR”) by 30 September 2023. Following registration, the BSR will invite the accountable person to apply for a Building Assessment Certificate to evaluate whether duties under the BSA are being complied with. There is also an immediate and ongoing obligation to manage any building safety risks and produce safety case reports as soon as practicable.
2. I am a leaseholder in a high-rise residential apartment block. The external cladding systems pose a fire risk and require remediation. Can my landlord pass the costs on to me?
If you are a qualifying leaseholder, it is unlawful for the landlord to demand service charge contributions for external cladding remediation. If you are a non-qualifying leaseholder and the landlord does not satisfy the developer test, you may be liable to contribute a capped amount towards the cladding remediation costs.
3. I am a landlord of a residential apartment block with defects relating to non-cladding works. Can I pass the costs of remediation on to leaseholders?
It would be unlawful to pass on costs for relevant non-cladding works to any qualifying leaseholder if you were (or were associated with) the developer or you have a net worth of more than £2 million per relevant building.
If these tests are not met then you can pass costs onto leaseholders but you must first issue a Landlord’s Certificate. This must be in the prescribed form under Schedule 1 of The Building Safety (Leaseholder Protections) (England) Regulations 2022. Failure to provide a Certificate that complies with the Regulations will result in the landlord being solely responsible for all historical safety defects.
4. As a landlord of a ‘higher risk’ building, do I have to comply with the BSA?
Yes! The BSA provides that any lease which purports to exclude or limit the landlord’s safety obligations under the BSA will be rendered void. The implied provisions of the BSA cannot be ‘contracted out’.
5. What constitutes a “building safety risk”?
For the purposes of the BSA, a ‘building safety risk’ means a risk to the safety of people in or about a building arising from the spread of fire, structural failure or any other prescribed matter.
6. What is the Building Safety Regulator (BSR)?
The BSR is a branch of the Health & Safety Executive and is responsible for securing the safety of people in or about buildings in relation to risks arising from buildings and improving the overall standard of buildings. The BSR must provide encouragement and assistance to relevant persons (owners/landlords/leaseholders) with a view to facilitating the safety of people in or about “higher risk” buildings.
The BSA is a complex piece of new legislation and, as there is no case law yet to assist with the interpretation of the provisions, obtaining expert advice is important for both landlords and tenants.