Building safety has featured heavily in the news over the last few years.
As the Building Safety Bill and the Fire Safety Bill make their way through Parliament we consider what building owners, developers and leaseholders need to be thinking about.
The Building Safety Bill will apply to what are termed ‘high-risk buildings’. Whilst it is not yet clear which buildings these will be, it is expected to be those of 18 metres or 6 storeys, or more, in height.
The Building Safety Bill also proposed changes which will apply to all building work, extending liability for non-compliance with the Building Regulations.
The Building Safety Bill is expected to be laid before Parliament in early 2021, and, subject to it being passed, is currently proposed to come into force in 2023. As much of the detail will be set out in secondary legislation, it is hoped that the government will publish this alongside the Building Safety Bill, giving a clearer picture of the full regulatory regime.
The Fire Safety Bill proposes that the duty holder (who could be the owner or manager of the building) for multi-occupied residential buildings will have to manage and reduce the risk of fire for the external structure, entrance doors, and common parts of the building. The increased obligations for owners and managers will include:
You need to comply with your current legal duties and that means complying with any interim measures identified in a fire risk assessment. Remediation of external cladding is not a quick or easy process and the fire risk assessment will need to be reviewed and appropriate measures put in place whilst any works are carried out. Much will depend on the building in question, but it is clear that once the new building safety regime is adopted, the level of scrutiny around fire safety issues is expected to increase across the board (whether you are considering a high rise residential building or not). It is also important to remember that cladding is not the only issue – there are potential issues with matters such as fire stopping, compartmentation, and fire doors.
No, and this is an issue. A landlord usually has an obligation to maintain and repair the building’s structure and common parts, but this is not the same as an obligation to make the building safe. If the landlord is not obliged to make the building safe, it will not be able to recover the costs for doing so under the service charge and will not have the right to enter individual dwellings to carry out building safety works. If the landlord does enter to carry out these works, without the requisite rights in the lease, it could be in breach of the covenant for quite enjoyment.
The Building Safety Bill addresses these issues by implying terms into the Landlord and Tenant Act 1985. Under the regime proposed in the Building Safety Bill, the landlord (as an Accountable Person) will be under a duty to carry out appropriate safety measures, and will also have a right of access to assess safety works. Residents will be obliged to keep electrical and gas installations and appliances in their dwellings in repair and working order, and to allow the landlord access to assess building safety risks and take steps to prevent a major incident.
The Building Safety Bill envisages that there will be a Building Safety Charge, payable by long leaseholders. The procedure for notifying tenants of the charge, and consulting with them, will be similar to the current service charge regime for residential properties. Tenants will have to pay the charge within 28 days of demand, but there is a time limit on the landlord or management company demanding the charge – there will be no right of recovery if there has not been a demand for payment within 18 months of the costs being incurred.
The Building Safety Bill, as currently drafted, provides that those who occupy under long leases (for a term exceeding 21 years), or a lease for a fixed term with a covenant or obligation for perpetual renewal, will be liable to pay the Building Safety Charge. Right to buy, right to acquire and shared ownership leases are included within the definition of long leases.
We don’t know at the moment. Many things have been suggested and regimes in other countries have been considered to see how it might work here. A lot will come down to political decisions, but there is no clarity at this stage.
This could well be an option in relation to cladding or fire safety issues in buildings recently constructed or refurbished, and building owners will need to take advice on the avenues open to them.
For example, they may have recourse against the building contractor who built the building, and may also be responsible for design and materials selection. A building owner will want to know whether the contractor complied with the specification, and that doesn’t just mean using the specified materials. It also means carrying out the works in the appropriate manner. Often the building contract will include a requirement to comply with building regulations. This may be a strict obligation, in which case it will be irrelevant whether non-compliance was deliberate, negligent or accidental. If the building regulations were not met, the contractor may be liable.
This is a real issue. A building owner will only really have an action if the building failed to comply with the building regulations that were in force at the time of building.
This can make it more difficult to pursue a claim because often the agreement will contain a developer’s release clause which, effectively, provides that once the building has been constructed and the rectification period has come to an end and the certificate of making good delivered, the obligations of the developer fall away. Generally this will be around a year after construction. After this period, the building owner will need to rely on insurance from NHBC, or a similar provider. This generally covers the period up to 10 to 12 years after construction.
What is covered will vary from policy to policy. For example, some will only cover building regulation defects if they present an immediate risk to health and safety; others will be much broader and cover all sorts of fire safety defects.
Yes, there is a limitation period in breach of contract claims against contractors and designers. The general rule is that you have six years to bring a claim if you just have a contract signed by the parties. If the agreement has been entered into as a deed, the period is extended to 12 years.
You should ensure that you are complying with your current legal duties. Building owners and developers of high rise residential buildings should be looking, in particular, at what is in the Building Safety Bill to ensure that they will be able to comply going forward.
TLT is monitoring the progress of the Building Safety Bill and the Fire Safety Bill. We have extensive experience in advising on regulatory, landlord and tenant, development and construction issues. If you want to discuss your requirements, please get in touch.
Contributor: Alexandra Holsgrove Jones
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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