Duties imposed by The Building Safety Act 2022 26 February 2024
Schedule 8 of Part 5 of the Building Safety Act 2022 fulfils what has been suggested to be a key purpose of the legislation, by limiting the recoverability of service charges by a landlord from flat leaseholders for the cost of relevant works to remediate fire risks and risks of building collapse.
However, the other side of the problem of defects in buildings which pose a fire risk or a risk of collapse is actually ensuring the works are done. This too is clearly an aim; paragraph 929 of the explanatory notes for the Act, for example, says this of Part 5:
“The leaseholder protections measures work at a fundamental level by limiting or preventing the costs that can be passed through the service charge to leaseholders by the freeholder. When costs cannot be passed on through the service charge, the freeholder, who is responsible for undertaking works to maintain the building, becomes liable for these costs.”
The suggestion appears to be that every landlord of every block of flats with, say, cladding defects, will be obliged to do works of remedy and thus that Part 5 solves qualifying leaseholders’ problems because works will be done andthose leaseholders will likely not to have pay towards the cost.
The difficulty with this is that it is far from automatic that a landlord will have to do the kinds of remedial works the Act appears to expect.
The starting point for landlord liability to do any kind of works is the landlord maintenance obligations in the flat leases. Most such leases require the landlord to do repair works, but it is a longstanding issue in dilapidations law that an obligation to repair may not include an obligation to remedy what is a defect only. If cladding was installed on the development of a block of flats made from a flammable material, the material’s flammability today will unlikely be disrepair, because the issue is not because of some deterioration of the material since it was installed. Similarly, if the problem is inadequate fire stopping as the block was built, or indeed the lack of a fire alarm, a landlord with a repairing obligation only will unlikely be under any obligation to remedy those issues under its obligations under the lease.
Of course, the landlord’s obligations may be, and often are, more extensive (e.g. to keep in good condition, see FirstPort v Cityscape LON/00AH/LSC/2017/0435 and Martlett Homes Ltd v Mulalley [2022] EWHC 1813 (TCC)), but there are many leases which at best have landlord maintenance obligations whose application to defect remedy could be the subject of considerable legal argument; not much assistance to a flat leaseholder anxious that flammable cladding or insulation be removed, nor to a landlord trying to understand what they are required to do.
For buildings which are in the higher-risk category, and thus fall into Part 4 of the Building Safety Act 2022, the Act does impose a new, qualified, duty to do works to remedy such defects. S84 imposes on any accountable person (often a landlord) a duty to “take all reasonable steps for the following purposes (a) preventing a building safety risk materialising … reducing the severity of any incident resulting from such a risk materialising”, where “building safety risk” is defined in s62 to include risks from the spread of fire and structural failure. Under s84(2), the steps included may involve the carrying out of works. What affects whether works are “reasonable”, for example the availability of a means of paying for the works, may well become an issue on which we will see future litigation.
However, for buildings which fall into Part 5, butt are not tall enough to be higher-risk buildings, the Act imposes no such duty. One has to look elsewhere to source a similar statutory duty to that in s84.
In relation to fire safety risks, a key source of such a statutory duty is the Regulatory Reform (Fire Safety) Order 2005. This was amended by the Fire Safety Act 2021 to apply in relation to premises containing two or more sets of domestic premises, to the building’s structure and external walls and common parts, and the doors between domestic premises and common parts, including doors and windows and balconies (art 6(1A)). The Order imposes duties on “the responsible person” (see art 3(b)) who (leaving aside a workplace) is “ the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not) or the owner …”, and, notably, upon every person who has, to any extent control of the premises including a person with “an obligation of any extent in relation to … the maintenance or repair of any premises … or the safety of premises” (art 5).These provisions are apt in most cases one would think to include the landlord. The duties imposed go beyond a requirement to carry out risk assessments and ensure that fire-fighting equipment is up to date, and extend to taking “such general fire precautions as may reasonably be required in the circumstances of the case to ensure that the premises are safe”. (art 8(1)(b)).
The 2005 Order may thus be a route to requiring a landlord to replace cladding, if that is reasonably required in the circumstances of the case. It does not though impose a duty in relation to the risk of collapse where that is not a fire risk. A landlord developer, or a landlord who has done extensive structural works, may also have liability to leaseholders under the Defective Premises Act 1972 s 1. It is possible as well that a landlord who retains the common parts in a block will have a sufficient duty to his leaseholders under the Occupiers’ Liability Act 1957 to be required to do remedial works if he has not posted suitable notices about the danger. However, it must be acknowledged that establishing liability under either of those statutes for building safety issues will not always be straightforward.
Additionally though a landlord may have an obligation imposed on it to remedy fire and collapse risks, if the local housing authority serves notice on the landlord requiring such works under the Housing Act 2004. That is not, however, an obligation which a leaseholder can directly action or enforce.
The above analysis emphasises the importance to the Part 5 Building Safety Act 2022 scheme of s123, the First-tier Tribunal’s jurisdiction (and only the FtT) to make a remediation order requiring works to be done. The Tribunal under s123 can make an order requiring remedy of a specified relevant defect against “a landlord under a lease of the building or any part of it who is required, under the lease or by virtue of an enactment, to repair or maintain anything relating to the relevant defect”. It appears that s123 is not, therefore, simply a new route to obtain specific performance by a landlord of a landlord leasehold obligation or a statutory duty. Rather, if the landlord is under a repairing obligation, or a relevant but limited statutory duty, the Tribunal can it seems require remedial works beyond the scope of those which the landlord could otherwise be required to carry out.
Thus, whilst the various statutory liabilities referred to above may not in and of themselves suffice, in conjunction with s123 they are likely to provide the key to getting the requisite remediation works done. Although the exact specification of the works that a Tribunal will be prepared to order in any given case will still need to be ascertained unless agreed; see in this regard the instructive decision of the FtT in Waite & Others v Kedai Ltd LON/00AY/HYI/2022/0005 and 016.
Back to articles
