Well, quite a bit has happened since my last post, Help, I really need a fix!

‘Leaseholder protections’ is a convenient shorthand for those provisions contained within the Building Safety Act 2022 (the Act), in relation to liability for the costs of remedying historic building safety defects in relevant buildings (that is, at least 5 storeys or 11 metres high and with 2 or more dwellings).

Recent developments in relation to the leaseholder protections include:

• The new amendment Regulations made in the summer on 4 August 2023, which came into force on the next day (a Saturday!). The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023 amend the Building Safety (Leaseholder Protections) (England) Regulations 2022 and the Building Safety (Leaseholder Protections) (Information etc) (England) Regulations 2022. There are a lot of changes to the original Regulations as made, which make some quite significant differences to practice. This includes:
  • A completely new version of the landlord’s certificate, with somewhat convoluted provisions to reduce the amount of information and evidence that landlords must provide alongside the certificate depending on the particular circumstances;
  • Updates to the procedure for requesting leaseholder certificates and providing the landlord’s certificate, with new requirements to provide copies to other specified parties with interests in the building; and
  • Changes to tidy up the procedure in relation to the new remediation orders and remediation contribution orders: these are orders requiring landlords to carry out necessary remedial works to remedy historic building safety defects in relevant buildings, and orders requiring other parties to contribute to the costs of those works, respectively.
• New cases being decided by the First-tier Tribunal (Property Chamber) (FTT) which provide helpful guidance in relation to the approach currently being taken to cases involving the leaseholder protections. 

Of particular significance is the first remediation order made in the case of 2-4 Leigham Court Road, London SW16 2PG : LON/00AY/HYI/2022/0005 & 0016. The approach that may be taken by the FTT in such cases where remediation under the Act was required to relevant buildings had previously been the subject of considerable debate. In this particular case, it was clear that there would be liability on the landlord to remediate the defects, so in that sense, it was a relatively straightforward case. However, in terms of wider application, the somewhat lengthy but clear and helpful decision included information about whether defects are likely to be relevant defects and guidance on the application of section 123 of the Act. It also provided an indication of the position likely to be taken by the FTT on costs. 

Overall, the decision revealed an outcome-based approach, to ensure that a building is made safe. The FTT sought to interpret the Act in a ‘straightforward way’ to make it work for leaseholders, as they considered Parliament had intended.

• A section of the new Levelling Up and Regeneration Act 2023 (section 243), passed on 26^th October 2023, which amends section 119 of the Act in relation to the long-awaited intention of the Government to legislate to fill a gap in the Act as originally enacted relating to lease extensions. A lease extension operates as a surrender and re-grant, but this meant that leaseholders holding a ‘qualifying lease’ lost the protections afforded to them under the Act on surrender of their lease. The wording now inserted in section 119 and the new 119A of the Act resolves this, operating retrospectively to cover all lease extensions (including business lease renewals under section 24 of the Landlord and Tenant Act 1954). The section is treated as having come into force from 28 June 2022 onwards, that is, when section 119 first came into force.

Section 233 of the Levelling Up and Regeneration Act 2023 also amends of the Act in relation to the Government’s ability to appoint a new body as the building safety regulator, rather than the Health and Safety Executive, and alter its constitutional and funding arrangements by making regulations in future. 

And, yes, I am feeling better for that ‘fix’!

Please do get in touch should you require advice about any of these changes, or would like an introduction to the requirements under the Act and the relevant Regulations in relation to your organisation’s relevant buildings.