Further provisions of the Building Safety Act 2022 in force on 6 April 2023

The Fourth Commencement Order for parts of the Building Safety Act 2022 (“BSA 2022”) was published on 23 March 2023 and will bring various provisions of the BSA 2022 into force on 1 and 6 April 2023 (Building Safety Act 2022 (Commencement No. 4 and Transitional Provisions) Regulations 2023.

Those involved in the management or development of mixed-use buildings containing at least two dwellings will want to consider in detail the provisions which are coming into force. The Fourth Commencement Order can be found here.

Higher-risk buildings

The registration scheme for higher-risk buildings opens in April 2023 and The Building Safety (Registration of Higher-Risk Buildings and Review of Decisions) (England) Regulations 2023 will also come into force on 6 April 2023 which prescribe the information that must be contained in registration applications.

Higher-risk buildings are those of at least 18 metres in height (at least 7 storeys) which comprise two or more residential units. There are certain exclusions set out in The Higher-Risk Buildings (Description and Supplementary Provisions) Regulations 2023 such as hotels.

The Fourth Commencement Order brings into force various important definitions within Part 4 of the BSA 2022 relating to higher-risk buildings. These include the following:

• “Occupied” – A higher-risk building is occupied if there are residents of more than one residential unit in the building
• “Accountable Person” – This is a person who is the legal owner of any common parts of the building or has a repair obligation in relation to the common parts. This may mean that there is more than one Accountable Person for a building.
• “Principal Accountable Person” – Where there is one Accountable Person for a building, they will be the Principal Accountable Person. Where there is more than one Accountable Person, the Principal Accountable Person will be the legal owner of the structure or exterior or has a repair obligation in relation to those parts of the building.

From 6 April 2023, where there is a dispute about the identity of the Accountable Person or Principal Accountable Person in relation to part or parts of a higher-risk building, an interested person has the power under Section 75 of the BSA 2022 to make an application to the Tribunal to determine who the Accountable Person(s) and/or Principal Accountable Person are and which areas they are responsible for. Interested persons include the Building Safety Regulator, a legal owner of the common parts or someone who has a repairing obligation in respect of the common parts.

Where there is more than one Accountable Person, they are required to co-operate and coordinate with each other. This duty is enshrined in Section 109 of the BSA 2022, which also comes into force on 6 April 2023.

Alongside the Fourth Commencement Order, The Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023 have been published. From 6 April 2023, the Principal Accountable Person must provide key building information to the Building Safety Regulator (“the BSR”) within 28 days of registration of an occupied higher-risk building. These regulations contain details of the key building information which must be given to the BSR.

Section 24 of the BSA 2022 also comes into force on 6 April 2022 and makes it a criminal offence to provide false or misleading information to the BSR.  Section 39 of the BSA 2022 will create a criminal offence with a potential sentence of imprisonment for breaching building regulations or a requirement imposed by building regulations.  Section 39 is not yet in force, save for the purpose of making regulations (none yet made).

Service charges

Aside from the provisions limiting service charge recovery for remedying relevant building safety defects in Schedule 8 of the BSA 2022, various other provisions of the BSA 2022 make amendments to landlord and tenant legislation governing the payment of service charges by lessees of residential parts of buildings. The Fourth Commencement Order brings into force some of these provisions. For example, where a relevant lease (granted for more than 7 years) of premises consists of or includes a dwelling in a higher-risk building and the tenant pays a service charge, a new provision is implied into a lease requiring the tenant to contribute towards the costs of building safety measures taken by the landlord (if they are the Accountable Person) or by a superior landlord (if they are the Accountable Person for the building).

Building safety measures are defined and restricted to the following steps under the BSA 2022:

• Applying for registration of a higher-risk building;
• Applying for or displaying a building assessment certificate;
• Assessing building safety risks;
• Taking reasonable steps to prevent building safety risks but not the cost of carrying out works to do so;
• Preparing and revising a safety case report;
• Notifying the BSR of a safety case report;
• Establishing and operating a mandatory occurrence reporting system for giving information to the Accountable Person to provide to the BSR;
• Keeping information and documents as prescribed by secondary legislation about higher-risk buildings;
• Complying with duties to prepare a residents’ engagement strategy and operating a system to investigate complaints; and
• Serving notice to access a resident’s premises in a higher-risk building to determine whether they have breached any of the duties which they owe under the BSA 2022 and serving a contravention notice in respect of any breach;

The costs which can be claimed include legal and professional fees, any fees payable to the BSR and management costs in relation to the above building safety measures.

Any covenant in a lease which seeks to modify the above implied term has no effect because it is not possible to agree to contract out of those provisions.

In addition, certain costs are excluded from being a building safety measure such as any penalty imposed by the BSR, costs incurred by reason of negligence or breach of contract on the part of an Accountable Person or someone acting on their behalf such as a managing agent. However, these costs are not excluded where the tenants own or run the building as a result of collectively purchasing the freehold or accepting an offer of first refusal under relevant legislation or where the tenants manage the building through a Right to Manage Company.

Separately, there is an important and far-reaching provision within Section 133 of the BSA 2022, which has not yet been brought into force, but which the Fourth Commencement Order brings into force for the purposes of making regulations. Currently, no regulations have been published. This provision applies to buildings containing at least two dwellings which are at least 11 metres high (or at least 5 storeys), except where the building is owned by the leaseholders. When fully brought into force, Section 133 of the BSA 2022 will require landlords carrying out certain remediation works to do the following:

• Take reasonable steps to ascertain whether any grant is payable in respect of the remediation works and if so, to obtain the grant;
• Take reasonable steps to consider whether any contribution to remediation works is due from a third party and if so, obtain the monies from the third party; and
• Take prescribed steps relating to any other prescribed kind of funding. Further details of what falls within scope will be contained in secondary legislation (not yet available).

Those steps can be taken before or after remediation works are carried out. However, if they are not taken, a leaseholder can make an application that all or part of the remediation costs incurred by a landlord are not reasonable and not payable by a leaseholder through a service charge. A Government consultation entitled: “Alternative cost recovery for remediation works: consultation on proposals to make regulations and statutory guidance” concerning the statutory guidance and policy proposals for the secondary legislation which would sit behind this provision closed on 31 March 2023. The Government’s response to that consultation is awaited.

The Fourth Commencement Order brings a significant number of provisions of the BSA 2022 into force, particularly important definitions for Accountable Persons and Principal Accountable Persons. It will be important for those owning, managing and developing mixed-use buildings to familiarise themselves with their duties and obligations particularly where the BSA 2022 is being brought into force in stages.

For more information, please visit our Building and Fire Safety Hub.

Please do not hesitate to contact Richard Flenley, Emma Humphreys, Laura Bushaway or your usual Charles Russell Speechlys contact if you have any queries.