Building Safety Act 2022

The Building Safety Act 2022 (“the Act”) which came into force on 28 April 2022 was introduced into law to address a number of safety issues which were brought to light following the Grenfell Tower disaster in 2017 and the Review of Building Regulations and Fire Safety led by Dame Judith Hackett and published in April 2020. It does this by allocating responsibility to deal with remedial works to buildings to make buildings safe, including but not limited to works in respect of cladding.  The material provisions introduced by the Act are only just coming into force with the first requirement coming into effect in April 2023. All sections of the Act will become fully enforceable by October 2024.

The legislation represents the start of a major change in relation to the regulation of fire and structural safety into multi-occupancy high rise residential buildings.

The Act also introduces amendments to the Landlord and Tenant Acts 1985 and 1987 dealing with additions and exclusions from service charges for Higher-Risk Buildings and building safety costs and the need to give building safety information in rent demands.

The Act is in six parts and eleven schedules. It amends existing legislation including the Building Act 1984, the Defective Premises Act 1972 and the Limitation Act 1980.

The Act makes major changes to the regulations of fire safety.  The Act provides for the appointment of a new regulator who is known as the Building Safety Regulator. The Building Safety Regulator is required to exercise its functions with a view to:

• “securing the safety of people in or about buildings in relation to risks from buildings” and
• improving the standards of buildings.

The Act introduces new duties in respect of “Higher-Risk Buildings” during the construction phase of the building.

Higher-Risk Buildings are defined as “buildings which are at least 18 metres high or have at least 7 storeys and contain at least 2 residential units”.

The new duty holder for Higher-Risk Buildings will be the Accountable Person.  The Accountable Person will usually be the freeholder of the Higher-Risk Building or the person or organisation responsible for maintaining its structure and common parts. There can be more than one Accountable Person for a building and the Building Safety Act 2022 introduced the role of Principal Accountable Person. This person or organisation will take overall responsibility for the management of risks in Higher-Risk Buildings.

The Principal Accountable Person is required to register an occupier of Higher-Risk Buildings with the Building Safety Regulator. The registration period opened on 6 April 2023 and will close on 30 September 2023. It will be a criminal offence for an unregistered Higher Rise Building to be occupied after the registration window period closes.

Each Accountable Person is required to keep and to keep updated certain prescribed information in relation to its Higher Rise Building. This is defined as the “Golden Thread”. It must be held in a prescribed format.

Each Accountable Person must assess the building safety risks for the building in respect of which they are responsible. This will require Accountable Persons to consult and engage with specialist fire safety professionals to undertake a suitable fire safety assessment of the Higher-Risk Building. The Accountable Person must prepare a safety case report in respect of an occupied Higher-Risk Building. This report must follow guidance issued from time to time by the Government. The Accountable Person must apply for a building safety report for a registered Higher-Rise Building within 28 days of being requested by the Building Safety Regulator. The Building Safety Regulator will issue a certificate if it is satisfied that the Appointed Person is complying with its duties.

Part 4 of the Act introduces amendments to the Landlord and Tenants Acts 1985 and 1987. Terms relating to building safety are to be implied in any lease of a dwelling in a Higher-Risk Building requiring the landlord to comply with building safety duties and requiring tenants to comply with their duties to allow access. It will be an implied term in any such lease of a dwelling to allow the costs of taking such building safety measures to be payable as part of the service charge attributable to the building, although certain costs are to be excluded from the service charge, namely costs and expenses incurred as a result of enforcement by the Building Safety Regulator. Future costs relating to building safety measures for exclusion are the subject to regulations.

Part 5 of the Act specifically deals with cladding and other costs. Part 5 (5) deals with the liabilities for costs of relevant defects (arising out of anything done or used in connection with relevant works in the last 30 years or after that period to remedy the relevant defect) which causes a risk to safety from fire or building collapse, with liability intended to be cast upon developers first, then manufacturers, then freeholders, then finally leaseholders. This part of the Act applies to relevant buildings containing at least 2 dwellings and at least 11 metres or 5 storeys high but with an exclusion for leaseholder owned buildings. This part of the Act applies to any qualifying lease of the dwelling which is for more than 21 years granted before the 14 February 2022 whereas at the 14 February the dwelling was the tenants only or principal home and the tenant did not own more than 2 dwellings.  No tenant of a qualifying lease will be liable to pay a service charge in respect of cladding remediation or relevant legal and professional services. Otherwise service charges are excluded for costs of relevant measures relating to relevant defects for which the landlord (or the developer associated with it) it is responsible or where the landlord has a high group net worth or where the lease is of lower value or otherwise charges limited by a £15,000 or £10,000 cap. There is a new section 20 D of the Landlord and Tenant Act 1985 which poses an obligation on landlords to take reasonable steps to ascertain whether monies for remediation works can be obtained by grant or from a third party or else remediation costs can be disallowed from service charges.

Part 5 also contains provision where the High Court is given a jurisdiction to make building liability orders against developers who have failed to meet a relevant liability under the Defective Premises Act or Section 38 of the Building Act 1984 as a result of a risk from fire spread or a structural collapse.

There is a proposed new homes ombudsman scheme and for new home builds warranties to provide for 15 years cover.

To find out more, please contact our New Homes Division on 03456 381381 or email us at newhomes@ibblaw.co.uk.

The New Homes Division is part of a wider Housebuilder team so as a firm IBB can offer a full and complete service to our housebuilder and residential developer clients.