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Guide to Building Safety Act for conveyancers issued by The Law Society

26 February 2024

THE LAW Society has issued a comprehensive Guide to the Building Safety Act, which has been produced at the request of members in order to assist them in acting on behalf of the sellers and buyers of leasehold properties where the 2022 Act of Parliament applies.

The Building Safety Act 2022 is, of course, a complex document, with new primary and secondary legislation yet to come and ongoing amendments to the existing legislation being brought forward.

Primarily for those acting in residential leasehold conveyancing matters in relation to individual properties, the Guide to the Building Safety Act 2022 provides information on who pays to remediate tall buildings affected by fire safety issues, general criteria for working on matters relating to the Act, establishing if a building is in scope, advice for sellers as well as buyers and lenders, detail around leaseholder-owned blocks and the current position in Wales (The Law Society’s document applies to the position in England).

The Law Society has worked in tandem with the Department for Levelling Up, Housing and Communities to provide supplementary Frequently Asked Questions and illustrations of some situations that solicitors may well encounter in practice.

Most major developers and housebuilders have agreed to fix ‘life-critical fire safety defects’ and have entered into remediation contracts with Government. A key step for conveyancers, then, is to establish the status of any remediation contract and the works agreed.

The developer remediation contract requires developers to:

*identify, assess and remediate buildings as soon as reasonably practicable

*report to Government on their progress on a quarterly basis

*take steps to keep residents informed about the progress of the works

Under these contracts, the developers agree to remediate life-critical fire safety works in buildings over 11 metres and more than five storeys.

Developer remediation contracts are backed in legislation by the Responsible Actors Scheme. This allows for serious penalties to be handed down to developers if they don’t comply.

As most major developers have entered into developer remediation contracts, most affected relevant buildings should be remediated in respect of ‘life-critical fire safety defects’ without recourse to long leaseholders.

Cladding-related remediation costs

The Building Safety Act 2022 provides leaseholders with statutory protection from the costs of cladding remediation. In essence, ‘cladding remediation’ references the removal or replacement of any part of a cladding system that forms the outer wall of an external wall system and is deemed unsafe.

There are different cladding schemes for properties in buildings that are:

*over 18 metres hight or more than seven storeys containing at least two flats (ie ‘higher-risk’ buildings)

*between 11 metres and 18 metres or are over five storeys and containing at least two flats

For buildings over 18 metres that are at least seven storeys and contain at least two residential units, the Building Safety Register has been established. This id purpose-designed to hold information about these ‘higher-risk’ buildings and the building assessment certificates they need to have.

The Building Safety Act 2022 and the Fire Safety (England) Regulations 2022 require ‘Accountable Persons’ and ‘Responsible Persons’ to electronically share building information with regulators. When available, the building assessment certificate will be displayed in the relevant building.

Building owners will not be able to demand the costs of remediating or removing cladding from qualifying leaseholders (ie those who lived in their property or who did not own more than three properties in the UK as at 14 February 2022) in relevant buildings (ie those over 11 metres or more than five storeys).

Non-qualifying leaseholders will be fully protected where their building owner is the developer or is otherwise associated with the developer.

Where the defect is in relation to unsafe cladding, a landlord (or associated person) is responsible for the works if they were the developer or undertook (or otherwise commissioned) the works relating to the defect. In these circumstances, no service charge is payable for these works under the leases, whether they are qualifying or non-qualifying.

Government schemes

Government schemes are in place to fund cladding-related remediation where developers cannot do so, which means that non-qualifying leaseholders are protected from cladding system costs.

The Cladding Safety Scheme will meet the costs of addressing life-critical fire safety works for buildings over 11 metres tall (or 11 to 18 metres in London) where the developer cannot be traced or held responsible for remediation work (for example, where they’ve ceased trading).

The Greater London Authority, of course, operates the Building Safety Fund for buildings over 18 metres in height in the Greater London area.

The leaseholder does not have to prove that the landlord is the relevant landlord.

Instead, the landlord has to prove they are not the relevant landlord by producing a certificate in a prescribed form to say that are not the relevant landlord.

*Read the Guide to the Building Safety Act 2022 in full by visiting The Law Society’s website