After the Grenfell Tower fire in June 2017, the Government established a Building Safety Programme with the aim of “ensuring that residents of high-rise residential buildings are safe, and feel safe from the risk of fire, now and in the future.”
From this tragic event came The Fire Safety Act 2021 and The Building Safety Act 2022.
The Fire Safety Act 2021 (FSA)
The FSA came into force, in England, on 16th May 2022. Implementation of FSA is different for properties in Wales!
Under the FSA, there must be a ‘Responsible Person’ for ALL multi-occupied residential buildings containing more than one dwelling where there are common parts – regardless of height.
The ‘Responsible Person’ must manage and reduce the risk from fire, the structure of the building and the external walls, including balconies and entrance doors to flats that open into common parts.
The regulations to be complied with increase in number and complexity, as the height of the building increases. This is because risk to life is greater with taller buildings.
What must the ‘Responsible Person’ do?
- In all multi-occupied residential buildings with two or more sets of domestic premises with common areas: (REGARDLESS OF HEIGHT) the Responsible person must:
- Provide relevant fire safety instructions to residents which includes instructions on how to report a fire and instructions as to what a resident must do once a fire has occurred, based on the evacuation strategy for the building.
- Provide information to residents regarding the importance of fire door safety.
- In RESIDENTIAL buildings at least 11m in height and up to 17.9 m in height, the Responsible Person is required to undertake the above duties AND:
- Undertake ANNUAL checks of flat entrance doors and quarterly checks of all fire doors in the common parts.
- In residential buildings at least 18m in height, the Responsible Person is required to undertake the above tasks a-c AND:
- Provide the Regulator under the FSA – their local Fire and Rescue Service with electronic up to date copies of building floor plans AND to place a hard copy of them, together with a single page floor plan which identifies the location of firefighting equipment in a secure box within the site itself.
- Provide the local Fire and Rescue Service with information about the design and materials of a high-rise building’s external wall system (cladding) and to inform the Fire and Rescue Service of any material change to these walls. Also, they will be required to provide information in relation to the level of risk that the design and materials of the external wall structure gives rise to and any mitigating steps taken.
- Undertake MONTHLY checks on the operation of lifts intended for use by firefighters and evacuation lifts in their building and check the functionality of other key pieces of firefighting equipment. They will also be required to report any defective lifts or equipment to their local Fire and Rescue Service as soon as possible after detection if the fault cannot be fixed within 24 hours and to record the outcome of checks and make them available to residents.
- Install and maintain secure information box in the building. The box must contain the name and contact details of the Responsible Person and hard copies of the building’s floor plans and single plan identifying firefighting equipment.
- Install signage visible in low light or smoky conditions that identifies flat and floor numbers in the stairwells of all relevant buildings.
Compliance with these regulations is likely to have an impact on Service Charges to Leaseholders within affected buildings as the costs for complying with these regulations will be likely to be passed to Leaseholders via their Service Charge bills.
The Building Safety Act 2022 (‘BSA’)
The BSA only applies to properties in England. Like with FSA above, there are different rules for properties in Wales.
BSA regulations apply to all ‘Relevant Buildings’ in England being defined as those with at least 5 storeys or at least 11m in height (whichever is reached first). Regulations differ according to height category of the building in question. The most stringent regulations apply to buildings defined under BSA as ‘Higher Risk Buildings,’ being those which are at least 18m or at least 7 storeys in height (whichever is reached first).
The main aims of the BSA legislation are to:
- improve fire safety, structural safety or safety relating to other ‘prescribed risks’ mandated for that building by the Building Safety Regulator (The Health and Safety Executive)
- provide (financial) protection against cost of remediation works, being passed back to Leaseholders via Service Charge provisions in their Leases, where remediation works are necessary to make the building safe/compliant in relation to
- ‘Qualifying Leases’ in
- ‘Relevant Buildings’
(Both of which have detailed definitions and qualifying criteria to be met)
BUT:
- Not every Lease or Leaseholder meets the criteria to be a ‘Qualifying Lease’ or a ‘Qualifying Leaseholder’
AND
- Not every building meets the criteria to be classed as a ‘Relevant Building’.
ONLY if the Lease, Leaseholder AND Building ALL meet qualifying criteria set out in the BSA, MIGHT a Leaseholder qualify for SOME Leaseholder Protection against costs being charged to them for remediation works required to their building under the BSA. The extent of any Leaseholder Protection against some or all remediation costs being passed back to an individual Leaseholder depends upon their circumstances, the circumstances of their Landlord and, in some instances, the value of the property.
What are the two new key roles introduced by the BSA?
- ‘Accountable Person’ who must undertake tasks set out in the BSA to:
a) Register any ‘Higher Risk’ with the Regulator (The Health and safety Executive abbreviated to ‘HSE’) by 1.10.23. There is a list to check if your building is registered – Search the register for ‘higher risk’ buildings
- obtain a risk assessment for all ‘Relevant Buildings’ (those at least 5 storeys or 11m in height) called a ‘Safety Case Report’ which identifies risks in the building in relation to the spread of fire or structural failure and specify measures being implemented to manage/reduce the risks identified.
- ‘The Regulator’- HSE- must review and approve/or may query/add to these documents produced to it by the Accountable. If the HSE is satisfied with the Safety Case Report, the HSE will issue a ‘Building Assessment Certificate’ which confirms the HSE is satisfied with how risks in that building are being managed.
In the alternate, the HSE may seek further information or may add more risks to those risks that must be managed within a Relevant Building. Risks added by the HSE are called ‘Prescribed Risks.’
Qualifying Leaseholders are NOT guaranteed ‘blanket’ protection against all costs: some safety measure costs CAN legitimately be passed back to Leaseholders because they relate to safety measures outside of the limited protection available to Qualifying Leaseholders, with a Qualifying Lease, in a Relevant Building under BSA criteria. Some Leaseholders can be asked to contribute towards remediation work costs, depending upon which BSA criteria they fall into.
It is our role to ascertain, on the basis of the documentation provided to us throughout the course of a Conveyancing Transaction, what remediation works are planned, and what, if any, Leaseholder Protection against some or all of those costs might be available to our clients. We then report this to our clients and where relevant, to any Lending institution connected to the transaction.
Where, under the BSA rules a ‘Qualifying Leaseholder’ can be asked to make a contribution towards the cost of any remediation works, there is a maximum, ‘capped contribution’ they can be asked to pay. ‘Capped contributions’ are payable over a 10-year period. In most cases the maximum contribution will be capped at £10,000 for properties outside of London. (£15,000 for properties inside of London)
Higher contributions may be requested in relation to very valuable properties. For more information on Capped Contributions see: https://www.gov.uk/guidance/leaseholder-contribution-caps
Or to learn more about Talbots’ conveyancing services, visit: https://www.talbotslaw.co.uk/site/for-you/property/conveyancing/