The Building Safety Act 2022 (“the Act”)

The Act runs to more than 250 pages, covering a vast range of fire safety related matters in great detail. The Act’s provisions will become law in stages, with the changes to the Defective Premises Act and the Building Act (explained below) having taken effect first on 28 June 2022.

So, what does the Act change in practice?

1. Potential Claims

Extension of Limitation Periods

• Claims under the Defective Premises Act:

The Defective Premises Act enables claims to be made for defective work relating to the construction of dwellings where the work renders the dwelling unfit for habitation. The limitation period (deadline) for claims brought under the Defective Premises Act is extended from 6 years to 15 years for new claims.

Where the claim relates to construction rather than the refurbishment of dwellings, there will be a retrospective 30-year limitation period.

• Section 38 of the Building Act:

This section provides a statutory right of action for breach of a duty imposed by the building regulations, so far as it causes physical damage (either injury or property damage). The limitation period for breaches is extended to 15 years.

• Claims against construction product manufacturers:

Where the use of defective construction products leads to the building being uninhabitable the limitation period will be 15 years. If the claim relates to a cladding product however, there will be a 30-year retrospective limitation period.

Other claims

• There will be a new right for those with an interest in a dwelling to claim against construction product manufacturers where the product fails to comply with a relevant requirement, has been mis-sold or is inherently defective and the use of that product causes or contributes to the dwelling being unfit for habitation.
• The High Court is able to make building liability orders against developers who have failed to meet a relevant liability under the Defective Premises Act 1972, or s38 of the Building Act 1984 as a result of a risk from fire spread or of structural collapse.
• New build home warranties to provide cover for 15 years.

2. Remediation Costs

• Part 5 of the Act deals with liability for costs of relevant defects, i.e. anything arising out of things done or used in connection with relevant works in the last 30 years or after that period to remedy a relevant defect which causes a risk to safety from fire or building collapse. A ‘waterfall’ approach is taken to liability – developers pay first, then manufacturers, then freeholders and then leaseholders last.

The provisions apply to buildings containing at least two dwellings that are at least 11m or 5 storeys high, but leaseholder owned buildings are excluded. It applies to any qualifying lease of a dwelling. i.e. one for more than 21 years granted before 14 February 2022 when at that date the dwelling was the leaseholder’s only or principal home and the leaseholder did not own more than 2 other dwellings.

No leaseholder will be liable to pay a service charge in relation to cladding remediation or relevant professional services. Additionally, service charges are excluded for costs of relevant measures relating to relevant defects (i.e. waking watches etc.) for which the landlord /developer associate is responsible, or where the landlord has a high group net worth, or where the lease is of lower value. Otherwise, charges will be limited by a £15,000 (London) or £10,000 (outside London) cap.

• Additionally, Landlords are obliged to take all reasonable steps to find out if money for remediation works can be obtained by grant or from a third party, or else costs may be deemed to be unreasonable service charges.

3. New Regulatory Regime

• Applies to ‘higher risk’ buildings, i.e. those of at least 18 metres or 7 storeys high. Provided the height threshold is met then draft regulations confirm that buildings in scope must contain at least two residential units (dwellings or other unit of temporary accommodation), or be hospitals and care homes during the constructions phase.
• The Building Safety Regulator (“the Regulator”) will be the building control authority.
• Building safety is to be considered at each stage of design and construction, with a ‘golden thread’ of information about each stage being maintained to ensure that building safety risks are managed throughout the building’s life.
• An Accountable Person will be the duty holder and must register the building before it is occupied, apply for a Building Assessment Certificate, and proactively manage safety risks by way of a Safety Case Report which must be kept up to date and be submitted to the Regulator. Once registered the Regulator will manage the assessment process by ‘calling in’ higher-risk buildings. For new buildings, this is likely to be within six months of occupation, with existing buildings being called in in tranches from April 2024.
• An amendment to the Regulatory Reform (Fire Safety) Order 2005 will require all Responsible Persons to record their fire risk assessments and only instruct competent persons to undertake these assessments. Closer collaboration with other Responsible Persons in the same building is also expected and in the case of residential higher risk buildings, Responsible Persons will need to co-operate with the Accountable Person.