In the second part of his article, Ian Quayle, CEO, IQ Legal Training, provides answers to the remaining top queries resulting from a recent webinar on the Building Safety Act.
Q13. Under the Fire Safety England Regs 2022 if the responsible person identifies a defect in a flat entrance door (e.g., no door closer), who is responsible to remedy the defect (RP (Registered Provider) or leaseholder) if this is part of the demise and the lease is otherwise silent?
A13. The Fire Safety (England) Regulations 2022 make it a legal requirement from 23.1.23 for responsible persons to undertake quarterly checks on all fire doors in common parts and to undertake on a best endeavours basis annual checks of all flat entrance doors that lead onto common parts.
If we then look at the Building Safety Act 2022 Section 95.
Duties of residents and owners
- This section applies to:
- a resident of a residential unit in an occupied higher-risk building who is aged 16 or over;
- an owner of a residential unit in such a building.
- A person to whom this section applies:
- must not act in a way that creates a significant risk of a building safety risk materialising;
- must not interfere with a relevant safety item;
- must comply with a request, made by the appropriate accountable person, for information reasonably required for the purposes of a duty under section 83 or 84.
- For the purposes of subsection (2)(b) a person “interferes” with a relevant safety item if they, without reasonable excuse:
remove it, or
do anything to, or in relation to, it that interferes with its intended function.
- In this section:
- “appropriate accountable person” means the accountable person for the building who is responsible for the part of the building comprising the residential unit;
- “Relevant safety item” means:
- anything that:
- is in, or forms part of, the common parts (as defined by section 72), and
- is intended to improve the safety of people in or about the building in relation to a building safety risk, or
- any other prescribed thing.
- anything that:
If a responsible person makes a request for a door closer to be fitted and the leaseholder fails to do, he/she would be in breach of duty. If we assume the door to the flat is part of the demise in order to comply with that duty the leaseholder would be liable for the cost.
I have not taken into account that the leaseholder could also be in breach of their repairing obligation under the lease.
Normally the lease will require the leaseholder to comply with all relevant legislation.
Q14. What of interlinked flat buildings, some of which are over the height and storey limits, but others are not?
A14. I think this will depend on the extent of the interconnectivity of the various parts of the building for building and fire safety purposes. Where there are common parts and connected structural features, the entire building will come within the scope of the BSA 2022.
Section 156 of the BSA 2022 has amended the Regulatory Reform (Fire Safety) Order 2005 which now applies to a building containing two or more sets of domestic premises.
The Building Safety (Leaseholder Protections) (England) Regulations 2022 refers to the Building Safety Act to determine to which buildings it applies.
Section 65 of the BSA 2022 defines higher-risk buildings:
- In this Part “higher-risk building” means a building in England that:
- is at least 18 metres in height or has at least 7 storeys, and
- contains at least 2 residential units
- The Secretary of State may by regulations make provisions supplementing this section.
- The regulations may in particular:
- define “building” or “storey” for the purposes of this section.
- make provision about how the height of a building is to be determined for those purposes.
- provide that “higher-risk building” does not include a building of a prescribed description.
- Regulations made by virtue of subsection (3)(a) may in particular define “building” so as to provide that it includes:
- any other structure or erection of any kind (whether temporary or permanent);
- any vehicle, vessel, or other movable objects of any kind, in such circumstances as may be prescribed.
- The Secretary of State may by regulations amend this section (other than subsection (2) or this subsection).
- For the meaning of “residential unit” see section 115.
I have not yet seen any regulations that clarify any further what a relevant building is, but I can tell you that a relevant building can be either a self-contained building or a self-contained part of a building. A self-contained building is a detached building. A self-contained part of a building means that the part could be redeveloped independently of the rest of the building.
Q15. Are you able to provide a copy of the Government Information sheet for these regulations please?
A15. Please see the links below:
- Landlords and Leaseholders see GOV.UK – mandatory information required from leaseholders and building owners available here.
- What are my building owner’s legal obligations? Click here.
- Qualifying date, qualifying lease, and extent, click here.
- Definition of ‘relevant defect,’ click here
- Leaseholders see GOV.UK Leaseholder protections: deed of certificate – frequently asked questions, click here
- Mandatory information required from leaseholders and building owners, click here
- What are my building owner’s legal obligations? Click here
- Building safety leaseholder protections: guidance for leaseholders, click here
- Qualifying date, qualifying lease, and extent, click here
- Leaseholder contribution caps, click here
Q16. Just noting what you said about seeing documentation being asked for where not required, does the Leaseholder and Landlord’s certificate only apply to those high-rise, higher risk buildings or, particularly the Leaseholder Deed of Certificate, to any leasehold property (2 flats and common areas…)? I understand that some firms may be asking for a leaseholder certificate for any leasehold property from 14 Feb.
A16, See previous answers with regards to relevant buildings and relevant leases. BSA 2022 can apply to all leasehold properties, but remediation and recovery of remediation costs only relate to higher-rise buildings over 11 metres in height and so landlord certificates and leaseholder deeds of certificate only apply to those buildings.
Q17. What is the position if there is a share of freehold? Usually, not high-rise buildings but lenders instructions do not take this into account at the moment.
A17. I do not think that where there is a share of the freehold as between a landlord and leaseholders the building is excluded from the definition of a relevant building, but the legislation and regulations do not deal with the point.
Q18. Is it correct that where the freehold of a relevant building has been collectively enfranchised, the financial protections under the Act do not apply?
A18. Leaseholder-owned buildings are also not relevant buildings as there is no separate building owner to whom costs can be passed. Leaseholder-owned buildings could include:
collectively enfranchised buildings – where some, or all, of the qualifying leaseholders have bought the building’s freehold
any building where leaseholders directly own the freehold, including through a company, where there is no separate freeholder
other circumstances where the freehold is owned 100% by one or more leaseholder
The relevant law is contained in Regulation 2 of The Building Safety (Leaseholder Protections) (England) Regulations 2022.
For the purposes of section 117(3)(c) of the BSA 2022, the freehold estate in the building or part of the building is leaseholder owned where:
the freehold estate is solely owned by tenants in the building, whether through a corporate structure or otherwise; and
paragraphs (a), (b) and (d) of section 117(3) of the Act do not apply in relation to the building.
Q19. Who should we refer the client to if they ask – who will give us the specialist advice? simply refer back to the surveyor?
A19. I suggest where the client has any issues concerning building safety risks or fire risks the client is told to contact the surveyor or valuer who has provided a survey or valuation and it would be for them to refer the client to a specialist. There are fire risk assessors and the RICS has guidance concerning finding a specialist surveyor, see Fire Safety – RICS Find a Surveyor on the RICS website. As for building safety a building surveyor may be able to assist and again the RICS website has details.
Q20. Other than the obvious (cladding) what remediation could there be? In other words, is the risk as great where the flat does not have cladding but is still over the requisite height?
A20, The answer to this question is contained in Section 120 of the Building Safety Act 2022 which contains a definition of relevant defect:
- This section applies for the purposes of sections 122 to 125 and Schedule 8.
- “Relevant defect,” in relation to a building, means a defect as regards the building that:
arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and
causes a building safety risk
- In subsection (2) “relevant works” means any of the following:
works relating to the construction or conversion of the building if the construction or conversion was completed in the relevant period.
works undertaken or commissioned by or on behalf of a relevant landlord or management company if the works were completed in the relevant period.
works undertaken after the end of the relevant period to remedy a relevant defect (including a defect that is a relevant defect by virtue of this paragraph).
- NB: “The relevant period” here means the period of 30 years ending with the time this section comes into force.
- In subsection (2) the reference to anything done (or not done) in connection with relevant works includes anything done (or not done) in the provision of professional services in connection with such works.
- For the purposes of this section:
- “Building safety risk,” in relation to a building, means a risk to the safety of people in or about the building arising from:
- the spread of fire, or
- the collapse of the building or any part of it.
- “conversion” means the conversion of the building for use (wholly or partly) for residential purposes.
- “Relevant landlord or management company” means a landlord under a lease of the building or any part of it or any person who is party to such a lease otherwise than as landlord or tenant.
- “Building safety risk,” in relation to a building, means a risk to the safety of people in or about the building arising from:
Q21. Is the Building Safety Act 2022 only relevant to high-rise buildings and if no remediation is required do you need a leasehold certificate or landlord certificate?
A21. The Act in part can apply to all buildings, but as far as remediation is concerned, landlord’s certificates and leaseholder deed of certificates only apply to buildings over 11 metres or 5 stories in height. The certificates assist in determining whether remediation has taken place. The leaseholder deed of certificate can provide protection to leaseholders so is worth obtaining just in case there has been remediation in the past.
Q22. I have had a situation where the lender requires documents regarding FRA, and the Management Company have stated that they do not agree that they are required to provide these documents. Obviously, I have reported to the lender and await their response, but it is an impossible situation.
A22. This is not an uncommon situation. Hopefully, these notes might assist you in persuading the lender or the management company that the landlord certificate and leaseholder deed of certificate are, or are not, required. If you are stuck, I suggest that you ask the lenders valuer to assist in helping to clarify the position.
Q23. When we are acting for a sale if the Landlord is unable to provide the certificate or is refusing to. How should we proceed?
A23. If you are satisfied that the building is a relevant building for the purposes of Schedule 8 of the Building Safety Act 2022 The failure to produce a certificate as required by the Building Safety (Leaseholder Protections) (England) Regulations 2022 will prevent the landlord from recovering remediation costs via a service charge.
Q24. If a landlord receives a Leaseholder Deed of Certificate due to a pending sale but there are no remedial works or defects, does the Landlord still have to provide the Landlord’s Certificate (the Template Form says that the certificate must specify the relevant defect)?
A24. The Regulations prescribe the form and circumstances in which landlords must provide information to tenants to enable them to assess whether they will be required to contribute towards the costs of remedial works by payment of a service charge.
As we have seen Landlord’s certificates must be provided:
- when the current landlord makes a demand to a leaseholder for the payment of a ‘remediation service charge’, (i.e. any service charge that includes costs for the remediation of defects causing a building safety risk);
- within four weeks of receipt of notification from the leaseholder that the leasehold interest is to be sold.
- within four weeks of becoming aware (either themselves or by notification from another person) of a relevant defect not covered by a previous landlord’s certificate; or
- within four weeks of being requested to do so by the leaseholder.
It would seem the certificate must be produced even though the building does not have any relevant defects.
Q25. Who pays for fire risk assessment if a flat lease is silent on the subject – landlord or tenant (via the service charge)
A25. The relevant law is contained in The Regulatory Reform (Fire Safety) Order 2005 and The Fire Safety Act 2021. Most residential leases include a provision that enables a landlord to recover the costs incurred in compliance with statutory obligations.
Q26. Regarding the Building Safety Act, what are we meant to do when we cannot even be entirely sure whether the legislation applies or not? If you have, for instance, a building where part of it is over 11m but some is less than 11m, clearly, you are then in the territory of is it a building, what is the wider building, is it an independent section, etc. We surely cannot confirm that, and I am not convinced any surveyors are going to want to offer an opinion on that either.
A26. I would suggest that it is reasonable to limit the scope of the retainer by advising the client that you are dependent on being provided with information from the landlord, management company, leaseholder and or your client’s surveyor or valuer to ascertain whether the building and or lease falls within the scope of the Building Safety Act 2022 and the relevant regulations. Remember the legislation is aimed at ensuring the landlord recovers remediation costs from contractors, government support and only leaseholders as a last resort.
Q27. Is the remediation work only relating to cladding?
A27. No remediation work is defined as relevant work see my answer to Question 10.
Q28. Would you be concerned if the building has an EWS1 showing no risk of cladding?
A28. An EWS1 is not a fire certificate and not every building in scope above 18m will require an EWS form – only those with some form of combustible cladding or combustible material on balconies. The EWS1 showing no risk of fire risk from cladding does not remove the need for production of the landlord’s certificate and or the leaseholder deed of certificate.
Q29. Where a building is run by a right to manage company, but where that company does not own the freehold, is the building a relevant building?
A29. Yes, it is a relevant building as long as it meets the criteria in Section 117(2) of the BSA 2022 and is not excluded by Section 117(3).
Section 117 of the Building Safety Act 2022 provides a definition “relevant building”
- This section applies for the purposes of sections 119 to 125 and Schedule 8.
- “Relevant building” means a self-contained building, or self-contained part of a building, in England that contains at least two dwellings, and;
- is at least 11 metres high, or
- has at least 5 storeys.
- NB: This is subject to subsection (3).
- “Relevant building” does not include a self-contained building or self-contained part of a building:
in relation to which a right under Part 1 of the Landlord and Tenant Act 1987 (tenants’ right of first refusal) or Part 3 of that Act (compulsory acquisition by tenants of landlord’s interest) has been exercised
in relation to which the right to collective enfranchisement (within the meaning of Chapter 1 of Part 1 of the Leasehold Reform, Housing and Urban Development Act 1993) has been exercised,
if the freehold estate in the building or part of the building is leaseholder owned (within the meaning of regulations made by the Secretary of State), or
which is on commonhold land.
The right to manage was created by the Commonhold and Leasehold Reform Act 2002 which provides a right for leaseholders to acquire the landlord’s management functions by transfer to a company set up by them – the Right To Manage (RTM) company and is not excluded by Section 117(3).
Part one of this article is available here.
About Ian Quayle
Ian Quayle is the Managing Director of IQ Legal Training and the Managing Editor of Property Law UK.