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Building Safety Act Update: New leaseholder protections

The Topline

The Building Safety Act 2022 remains a key focus for housebuilders and real estate stakeholders. New regulations, now in force, clarify and amend the 2022 leaseholder protection regulations, which relate to protections for long residential leaseholders against liability for the costs of the remediation of certain historic defects.”

Pawan Pandit, Senior Associate, Housing Management Litigation

Pawan Pandit

An image of a row of buildings. A visual metaphor for the topic of this piece Building Safety Act 2023 Update: New leaseholder protections.

On 5 August 2023, the Building Safety (Leaseholder Protections etc) (England) (Amendment) Regulations 2023 (SI 2023/895) came into force. They amend and clarify earlier regulations [1] which deal with the operation of leaseholder protection provisions in the Building Safety Act 2022 (the BSA).

Key points to note

  • The Homes and Communities Agency is added to the list of interested persons who may apply for a Remediation Order (RO) under section 123 of the BSA.
  • The Homes and Communities Agency, the named manager in a relevant lease, an RMC (i.e. a leaseholder owned management company), and RTM companies of a relevant building are all now interested persons who may apply for a Remediation Contribution Order (RCO) under section 124 of the BSA.
  • Changes to the provisions for recovery of remediation costs from multiple landlords [2] provide that, if there are two or more responsible landlords, liability is joint and several.
  • Where a current landlord has provided a Landlord’s Certificate to a leaseholder, it must provide a copy to any other landlords of premises in the building, to any RMC, RTM company or named manager, within one week of providing it to the leaseholder.
  • Within one week of receiving a Leaseholder Certificate, the current landlord must provide a copy to any RMC, RTM company or named manager for the building to which the certificate relates.
  • The current landlord must now additionally provide a Landlord’s Certificate within 4 weeks of becoming aware of any new Leaseholder Certificate containing information that was not included in a previous Landlord’s Certificate.
  • Where the relevant landlord meets the ‘contribution condition’ and was responsible for a relevant defect (directly or indirectly), the Landlord’s Certificate does not have to provide information about group structures or accounts.
  • Substitution of a new form of Landlord’s Certificate. The previous version, accompanied by prescribed information and documents, was onerous and not easy to complete. The content of the new form will vary according to which tests are met. It also includes a question whether there are in fact any ‘relevant defects’ identified as at the date the certificate is produced.
  • Landlords must use the new Landlord Certificate form from 5 August 2023.

Building Safety Act leaseholder protections: How we can support you

Working seamlessly with building safety colleagues in our dedicated Real Estate, Real Estate Litigation and Construction & Engineering teams, Walker Morris’ Housing Management & Litigation specialists can provide expert, tailored advice on the leaseholder protection provisions in the BSA.

From advising whether a person is a qualifying leaseholder, to what protections may be available; from applying for ROs and RCOs to assessing/pursuing claims under the Defective Premises Act 1972; or from providing proactive regulatory advice to assisting with dispute resolution strategies, Walker Morris’ BSA experts can provide comprehensive, but clear and concise, advice.

If you have any building safety queries, concerns or training requirements, please call Pawan Pandit or Asia Munir, who will be very happy to help.

 

[1] The Building Safety (Leaseholder Protections) (Information etc) (England) Regulations 2022 (SI 2022/859) and the Building Safety (Leaseholder Protections) (England) Regulations 2022 (SI 2022/711)

[2] where a landlord is unable to recover costs from leaseholders as a result of leaseholder protections in the BSA

Pawan
Pandit

Senior Associate

Housing Management Litigation

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Asia
Munir

Director

Real Estate Litigation

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