Although we are only at the beginning of 2023, recent weeks have seen a flurry of announcements, updates and important changes that are of immediate relevance to Landlords and Managing Agents.
In this latest article, Katie Orr of specialist property solicitors JB Leitch, draws together and summarises the most notable official updates with regard to building safety, highlighting the implications and obligations it is important to be aware of.
Fire Safety Regulations 2022
The Fire Safety (England) Regulations 2022 (extending duties imposed by the Regulatory Reform (Fire Safety) Order 2005) became active on the 23rd of January 2023. With regulations applying to all buildings in England that comprise two or more domestic premises the Regulations apply regardless of whether the flats are subject to a long (e.g. 99 years) lease or are rented, or whether the flats are used to accommodate the general public or a particular group of people. A key point to note is the onus on the “Responsible Person” (RP) to provide residents with safety instructions and information on the importance of fire doors and the requirement to provide information to Fire and Rescue Services to assist them to plan and deliver an effective operational response.
This includes:
- Undertaking checks of all fire doors (including self-closing devices) in the common parts of a building every quarter
- Undertake annual checks of all flat entrance doors (including self-closing devices) that lead onto a building’s common parts, on a best endeavour basis*
- Provide fire door safety information to residents
The responsible person may be the owner of the building, the landlord, or any person that has control of the premises such as a building manager, a facilities manager, or a managing agent and it should also be noted that the duties of the RP will need to align to those of the Accountable Person under the Building Safety Act, a point on which further clarification is awaited.
LPE 1 & Lender Guidance
Trade and representative bodies covering the legal, surveying, estate agency and property management sectors, including the Conveyancing Association launched the new and revised LPE1 (leasehold property enquiries) form on the 9th of January. The release of coincided with lenders changing their policies to be able to lend on properties in remediation schemes, or those covered by leaseholder protections. This, the fourth version of the guidance form, includes whether the Leaseholder Deed of Certificate has been served on the Landlord in relation to the sale of the property or remedial works required to the property, whether a Landlord’s Certificate has been served and where there is any outstanding enforcement action against the Landlord or Accountable Person. The new form can downloaded via the IRPM website.
As noted above, the 9th of January 2023 also saw new guidance published by the Royal Institute of Chartered Surveyors (RICS) enabling lenders to consider mortgage applications on properties in buildings in England of 11m and over in height. Lenders will need evidence that buildings will be self-remediated by developers or covered by a recognised government scheme (such as the Building Safety Find) or by leaseholder protections contained in the Building Safety Act, as evidenced by a Leaseholder Deed of Certificate. Initial reports suggest the measures have been met with initial optimism and many lenders have pledged support to this mechanism which aims to enable lending to recommence and end the inertia around those seeking to purchase or re-mortgage flats impacted by cladding.
Developer Remediation Contract & Responsible Actors Scheme
On Monday 30th January, the Department for Levelling Up, Housing and Communities announced that developers have received legally binding contracts that will commit them to pay to repair unsafe buildings. The government has set a 6-week deadline (to March 13th) for developers to sign the legal agreements. Legislation will be brought forward in the spring giving the Secretary of State powers to prevent those who fail to sign and comply with the remediation contracts from operating freely in the housing market.
A Responsible Actors Scheme (RAS) in England, pursuant to Sections 126-129 of the Building Safety Act 2022, is to be brought forward in the Spring, to give the Secretary of State powers to prevent developers from operating freely in the housing market by blocking building control approval if they fail to sign and comply with the remediation contract. The operational details of the scheme will be set out in regulations, which may also include requirements in relation to fit and proper persons.
Accountable Persons – Further Definition
The Health & Safety Executive (HSE) recently published a bulletin further detailing the role of the Accountable – and Principal Accountable – Persons introduced by the Building Safety Act, 2022.
The release acknowledges that the registration process and the information required to complete registration are subject to secondary legislation being in place, but further clarification and information on the roles of AP and PAP could be provided.
The release recaps on the role of the AP, namely as those people legally responsible for repairing common parts of a building, for example the exterior and structure of the building or corridors or lobbies. They may be an individual, partnership or corporate body and there may be more than one AP for a building. Where there is more than one AP for a building, the AP that owns or is under obligations to repair the exterior and structure of the building will be recognised as the Principal Accountable Person.
Key duties for the Principal Accountable Persons (PAP) include:
- Register their building with the Building Safety Regulator (see above)
- When directed by the BSR, apply for a Building Assessment Certificate and display it in the building
- Prepare a Safety Case Report using the risk assessment and provide this to the Regulator, updating it as required to ensure it is complete, accurate and sufficient
- Maintain and manage the important information necessary for managing the building safely – the ‘golden thread’
- Develop a resident engagement strategy and complaints procedure
- Report certain occurrences, such as fires, to the Building Safety Regulator, in the form of mandatory occurrence reports
The HSE state that more detailed guidance on APs and PAPs roles and their legal responsibilities will be made available in the coming months. It will also be worth noting the guidance on alignment between the Responsible Person and the Accountable Person roles as detail emerges.
In summary, it is clear that the pace of reform is being maintained and although there is still much to clarify, expectations are being set at pace. We will continue to monitor and report and should you wish to discuss any of the subjects above further, please contact us: [email protected]
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About the Author: Katie Orr – Trainee Solicitor
Katie deals with a wide variety of residential property matters. Katie’s workload consists of both making and defending applications in the First-tier Tribunal relating to the reasonableness and payability of service charges and dispensation of section 20 consultation requirements. Katie specialises in issues relating to fire safety, non-standard arrears recovery and right to manage.
Katie’s role also includes advising Landlord and Management Company clients in regard to recoverability of service charges and breach of lease.
Katie also frequently provides commentary through articles and blog posts which deliver practical advice on a range of property matters to clients and the wider public, visit our news section here.
