Building Safety Act Conference – our 10 key takeaways
Zoe McLean-Wells
Solicitor
0113 733 7047
Hannah Keane
Solicitor
020 7880 4309
On 30 October 2023 Devonshires hosted their flagship Building Safety Act 2022 Conference. The conference was a joint project between our Housing Management and Property Litigation and Construction & Engineering Teams involving practices from the whole firm. It was a huge success involving around 200 delegates including a significant number of our clients who attended the conference to hear experts discuss all things Building Safety. The conference covered a wide range of areas including the roles of the RP, AP and PAP, the Golden Thread, Resident Engagement Strategies and service charge restrictions and information. We heard from some fabulous external speakers including Victoria Moffett, Head of Building and Fire Safety programmes at the National Housing Federation, Simon Mellor from PRP Architects and Nick Grundy KC from Five Paper Buildings. So much information was provided on the day and we set our 10 key Housing Management and Property Litigation takeaways below:
1
The Building Safety Act 2022 (“the BSA”) introduced two new duty holders – the Accountable Person(s) (‘APs’) and Principal Accountable Person(s) (‘PAPs’). These duty holders sit alongside the Responsible Person who was already an established duty holder under the Regulatory Reform (Fire Safety) Order 2005. The BSA introduced a raft of duties for these duty holders. Registered Providers are urged to identify whether they are a duty holder so that they can ensure compliance with these duties.
2
It is important that landlords, PAPs, APs and RPs make themselves familiar with the information they will have to provide to residents, other interested persons and the Regulator. Whilst a significant portion of the Regulations remain not yet in force, we can get ahead of the curve by understanding the requirements of the Regulations and thinking about notices, information and policies that need to be put in place.
3
Landlords and duty holders will be expected to work with each other and other bodies (the Building Safety Regulator, for example) in relation to the provision of information to each other and residents. In certain circumstances, a failure to provide relevant Building Safety Information can result in rent, service charges and/or administration charges not being due until such time as that information has been provided.
4
As well as duties for the duty holders, the BSA imposes duties on residents of higher-risk buildings. Residents are now required to (a) not act in a way that creates a significant risk of a building safety risk materialising, (b) not interfere with safety equipment that is in the common parts of the building and (c) comply with requests for information by an AP.
5
If a resident fails to comply with these duties, the BSA has given AP(s) enforcement powers. These enforcement powers come in the form of a Contravention Notice and a Request for Access. If a notice or request is not complied with, then the AP who has served the same can apply to the County Court for an order requiring the resident to provide information or allow access to the property, for example.
6
One of the main aims of the BSA is to increase resident engagement. The duties of residents and duty holders promote engagement between both parties and promote the participation of residents in making building safety decisions. An emphasis is placed on transparency and ensuring that residents feel safe and are aware of each party’s individual responsibilities and what part the residents play in ensuring that these responsibilities can be fulfilled.
7
The restrictions on landlord’s ability to pass down service charges are intended to protect innocent leaseholders. However, they do not apply to buildings under eleven metres. These buildings can suffer from the same defects as those above eleven metres and in these circumstances, landlords could pass down the cost of fire safety remediation works without restriction (if of course the lease allowed them to do so).
8
The BSA introduced Remediation Orders and Remediation Contribution Orders. In summary, a Remediation Order can require a party to undertake remedial works and a Remediation Contribution Order can require a party to make payments in respect of remedial works. Both orders can be made by the First Tier Tribunal (‘the FTT’) and there have been two decisions by the FTT – one on each of the respective orders. These decisions are not binding but provide a valuable insight as to how the FTT will interpret the BSA and how future applications will be approached.
9
The FTT has also made a recent determination on an application for an order compelling the landlord to comply and produce a landlord’s certificate. Regulation 11 of the Building Safety (Leaseholder Protections) (England) Regulations 2022 (SI 2022/711) provides that a leaseholder can apply to the FTT for an order if they believe a relevant landlord has made a false claim in their certificate. However, the FTT determined that there was no regulation which enabled the FTT to make an order requiring a landlord to provide a landlord’s certificate even if there is a reasonable case to show that the landlord is in breach of their statutory duties.
10
From what we have seen so far, it is clear that the BSA will shift the landscape of the sector and there is still more to be seen with Regulations not yet seen and/or not yet in force.
We are at the forefront of advising on the developments so please do get in touch if you have any questions. If you would like more information, please contact Zoe McLean-Wells or Hannah Keane.
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