The Building Safety Act 2022 came into force on the 1st April 2023. Thankfully for residents and homeowners in unsafe buildings, this was not an April fool. Rather, the new legislation is intended to change the way buildings are designed, constructed and managed. It claims to be ground-breaking (make of that what you will) in giving homeowners and residents more rights, powers and protections.
Though the act will be relevant to all new builds now and in the future, there’s special provision for higher risk buildings of seven storeys or more. Though, just to be confusing, some parts of the legislation apply to buildings with more than five storeys. Apologies. We didn’t write it. This is a long-awaited response to the calls for change following the Grenfell Tower tragedy in 2017. The act is intended to address the crisis in building safety, particularly the cladding scandal. (We’ve written about the cladding scandal before, here and here).
So what does the new act mean for those affected by the cladding scandal?
If you live in a building affected by the cladding scandal, on the whole, the new act should be welcome news for you. The act will protect the majority of leaseholders from any costs associated with fixing historical building safety defects. There are specific rules included for cladding here: if high-rise buildings have been incorrectly built with dangerous cladding, leaseholders should be protected from the astronomical costs of replacing it.
There are a few things to bear in mind here (aren’t there always?):
- Buildings have to be occupied.
- Buildings have to contain at least two residential units.
- Care homes and hospitals can be included, as long as they meet the height requirement.
There’s also the slightly baffling fact that the status of whoever was the leaseholder on the 14th February 2022 will determine whether the current leaseholder is entitled to these protections. For reference, whoever was holding the lease on Valentine’s Day 2022 needs to have been living in the property themselves and must not have owned more than two other properties at the time.
Despite the potential for confusion, the overall intention here is clearly to help solve the crisis created by the cladding scandal. The act sets out to make clear who holds responsibility for replacing cladding on affected buildings and to ensure that residents are safe.
How will it change the building process?
Developers will need to put together a lot more information during the design and construction of buildings about how they intend to keep the building safe. This information will be known as ‘the golden thread’, with the idea that the information stored in this digital record will span the entire lifespan of a building. This golden thread will be passed along during the process and theoretically, should anything go wrong, it will lead right back to the individuals responsible.
And that’s the nub of it really: responsibility. The act brings in a real shift in this respect. Developers and building owners will need to shoulder a lot more responsibility for ensuring their buildings are safe. And when things do go wrong, building owners and landlords will be on the hook to fix them. The new act makes it extremely clear that building owners and landlords will need to contribute to the costs of fixing their own buildings.
If these rules aren’t followed, there can be serious consequences. There are no limits to the possible fines that can be enforced and, in extreme cases, it could even mean prison time. (Though, ironically, prisons, as well as hotels, barracks and MOD buildings, are exempt from the regulations).
What practicalities are we talking here?
We’re fairly early on in the life cycle of the legislation at the moment, and there’s still an ongoing process of secondary legislation and the like which will help to nail down exactly how the laws will work in practice. But, thus far, the idea seems to be for many of the practicalities of the act to be managed by three new bodies:
- The Building Safety Regulator (who will oversee the safety performance of all buildings, with a particular focus on high-rises. All higher risk buildings will need to be registered with them).
- The National Regulator of Construction Products (who will regulate construction products and ensure that those that make it to the market are safe).
- The New Homes Ombudsman (who will run a compulsory scheme for developers that sets out standards of conducts and quality of work. They will also hear complaints from owners of new builds).
You may also be pleased to note that the act brings in a new developer tax and levy to ensure the building industry contributes to the cost of addressing these problems.
Does it improve things for leaseholders generally?
Yes, or, if we’re being cynical, it’s certainly supposed to. As well as addressing the costs of replacing cladding, the new legislation also protects leaseholders from the cost of other historical building safety defects (along with any associated interim measures).
It should also:
- Make safety costs for leaseholders more transparent.
- Give residents more say in how their buildings are kept safe.
- Give residents more power to hold owners and management companies to account.
What’s the deal on new builds?
Thanks to the act, if you buy a new build you’ll now have more options for recourse if things go wrong. Not only will the development company be required by law to be more accountable for any safety defects, you’ll also have the dedicated New Homes Ombudsman to raise issues with if they won’t take complaints seriously.
As a little extra bonus, homeowners will now have 15 years to claim compensation for sub-standard construction, which is a big increase from the previous deadline of six years.
How could it affect future sales and purchases?
Ultimately, this new legislation should open up the market for flats in cladding-affected buildings again, which is a pretty big deal.
However, like with all new rules and regulations, there are likely to be teething problems. In the short term, this may translate into some additional frustrated hair-pulling on the part of your conveyancer. There will be extra jobs for them to manage during the sales or purchase process, with additional checks to make and verify (for example, tracking down proof of who lived in the flat last Valentine’s Day and how many properties they happened to own).
If you find yourself in this position, please spare a thought for the extra complications your conveyancer is dealing with on your behalf. Things may take a little longer (and you may need to sit through some additional riveting legal explanations before you can sign on the dotted line) but you can be sure it’s all in your best interest.
Got questions about the new act and how it might impact your future adventures in conveyancing? If so, please don’t hesitate to get in touch. We’re always on hand to offer advice on this, including sniffing out golden threads and Valentine’s leaseholders.