The building safety experts at JB Leitch solicitors provide a summary of the key events impacting the sector in 2023, and provide a look ahead to what to expect in 2024…
Few would argue that 2023 has been another significant year across the property management sector. From the introduction of secondary legislation and guidance in building safety, up to the introduction of the Leasehold and Freehold Reform Bill in recent weeks, the implications and impacts on Landlords and Managing Agents are far reaching. In this short article we provide a brief overview of the most notable events relating to building safety and signpost key updates to be aware of in 2024.
The Spring
The Higher-Risk Buildings Regulations
Following appointment of the HSE as the Building Safety Regulator, the Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 came into force on 6th April 2023. We define these buildings as having a minimum of two residential units and meeting either of the following criteria: a height of at least 18 meters or a minimum of seven storeys.
- The regulations require the principal accountable person (the person responsible for the repair of the structure and exterior of the building) to provide key building information to the Building Safety Regulator.
- The key building information includes details about the use, materials, structure, energy, and emergency planning of the building. The principal accountable person must also notify the regulator of any changes to the key building information and comply with any directions from the regulator.
- The regulations also set out how to determine which parts of a higher-risk building an accountable person (the person responsible for the day-to-day management of the building) is responsible for under Part 4 of the Building Safety Act 2022.This depends on whether the building has one or more accountable persons and whether they have legal or contractual rights over the building or its parts.
The Summer
The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023 (the Amendment Regulations) were introduced on the 5th August.
Specifically, amendments are made to secondary legislation under The Building Safety (Leaseholder Protections) (England) Regulations 2022 (SI 2022/711) and The Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022 (SI 2022/859). These changes primarily relate to landlord’s certificates and clarification around the provision of information, detailed below:
Landlord Certificates
Essentially, the new regulations replace the existing landlord certificate with a simplified version and landlords must use the new landlord certificate form from the 5th of August 2023 and when required to provide a landlord certificate. With landlord certificates informing leaseholders in relevant buildings whether they are liable for any costs relating to remediation costs, landlords must now provide a landlord certificate to all leaseholders in a relevant building, regardless of qualifying lease status. Where a certificate has already been issued, the amending regulations do not require a fresh certificate to be issued.
Evidence Requirements
Under the new amendments, the current landlord does not need to provide certain evidence where they accept liability for a relevant defect. This is intended to reduce the information sharing requirement to that which is essential for the leaseholder and landlords, Resident Management Company (RMC), Right to Manage company (RTM) or named manager to determine liability. Each section of the certificate only needs to be completed where it is actually relevant to the leaseholder’s potential liability for remediation costs.
Recovery of Costs from Landlords
Previously, only leaseholders (individually or collectively), enforcement bodies (e.g. the relevant local authority or fire and rescue authority) or other specified interested persons were able to recover remediation amounts from the landlord or developer via a remediation contribution order. Government guidance highlights that the amending regulations refer to the collective ‘L’, as the body responsible for managing and repairing the building, (be that the landlord, RMC, RTM, or named manager) who must issue a notice to a landlord in order to be able to recover the remediation amount. The regulations set out the information that must be included in the notice, which is the amount to be recovered and information on the appeals process.
In July 2023, regulations to establish a Responsible Actors Scheme (RAS) for residential developers under sections 126-129 of the Building Safety Act 2022 were signed into law. On the 21st of July 2023, government launched the Responsible Actors Scheme.
- The scheme recognises action taken by responsible developers to identify and remediate or pay to remediate life-critical fire safety defects in residential buildings 11 metres or over in height which they developed or refurbished in England over the 30 years to 4 April 2022.
- Any eligible developer who is invited to join but does not sign up to the Scheme or joins but has their membership revoked because they do not comply with the membership conditions, will be added to the Responsible Actors Scheme prohibitions list and will be prohibited from carrying out major development and from securing building control approval subject to limited exceptions.
A subsequent subject of debate, these amendments set out new timelines for landlords to provide certificates:
• The new regulations require the current landlord to provide the RMC, RTM or named manager with a copy of the landlord certificate and leaseholder deed of certificate within one week of completion or receipt.
• Where the current landlord fails to comply, the regulations provide that costs cannot be passed on to leaseholders.
• Where the landlord becomes aware of a new leaseholder deed of certificate, the landlord must provide an updated landlord certificate within four weeks.
• With regard to the extension of appeal deadlines, regulations now provide that a landlord may apply for an extension to the appeal time limit by 30 days with the permission of the First-tier Tribunal, to enable out-of-court engagement.
The Autumn
As well as becoming the new building control authority for High-rise Residential Buildings, the Building Safety Regulator’s first charging scheme came into effect on 1 October. The scheme, which has been created under the Building Safety (Regulator’s Charges) Regulations 2023, will enable cost recovery. The latter is a key element of the Building Safety Regulator’s funding. The official HSE page outlines that the scheme covers:
- the chargeable functions
- the trigger for each chargeable activity
- who is required to pay for the chargeable activity
- what the amount payable will be made up of
- the relevant legislation for that activity
It says building owners will be charged £251 for the registration of a high-rise building, with £288charged for an application for a building assessment certificate. When a building safety case is called in for review, which will begin to take place from 5 April 2024, the regulator will charge £144 per hour, which is its flat fee for most of its work.
The Winter
Waking Watch Replacement Fund 2023
In late November, the deadline for applications to the Waking Watch Replacement Fund was extended to midnight 31 March 2024. This follows the government announcement in May this year of a further £18.6 million to fund the installation of a common alarm system replacing waking watch measures in all residential buildings where a waking watch is currently in place in England, regardless of where the costs of the waking watch fall.
Looking Ahead – 2024
As alluded to above, one of the key considerations for early 2024 will be the development and submission of building safety cases.
With the building registration process closing in October 2023, many readers will be aware that Building Safety Regulator will start to call in buildings for assessment and issue Building Assessment Certificates from April next year.
A Building Safety Case Report is the document that summarises the safety case for a high-rise residential building. It identifies the building’s safety risks and explains how the risks are being managed. Building safety risks are the risk of the spread of fire or structural failure. The principal accountable person must use the safety case to prepare a safety case report. The report must contain details of the accountable persons, responsible persons, who prepared the report, building description, risk assessments summary, and managing risks summary.
Additionally, the government’s published guidance states that the report should provide evidence of the assessment of all building safety risks, including fire and structural risks, and all reasonable steps that have or will be taken to control these risks. Guidance also highlights that it’s important to keep this information up to date and in an easily accessible, digital format. the principal accountable person must then use the safety case to prepare the safety case report, and it should be submitted to the Building Safety Regulator when applying for the building assessment certificate.
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