In response to the Grenfell Tower tragedy, the Building Safety Act 2022 (“the BSA”) introduced a revolutionary change in the regulatory framework governing England's construction environment. This legislation, aimed at enhancing building safety, establishes rigorous standards and procedures for the construction and management of buildings, with a particular emphasis on Higher-Risk Buildings (“HRBs”).

Briefly The Building Safety Act 2022

A claim under the BSA can be initiated by individuals holding a legal or equitable interest in the property, particularly when they incur losses due to the property's uninhabitable condition, directly resulting from non-compliance with construction material requirements, misleading statements during the supply or marketing of construction materials, or the production of inherently defective construction materials.

The BSA introduces specific liabilities for "higher-risk buildings," defined by stringent criteria, including those that are:

• At least 18 meters in height and comprise 7 or more storeys; and
• Contain a minimum of 2 residential units; or
• Buildings that are at least 7 storeys, encompassing student accommodation, hospital facilities, or care homes. Notably, hotels, military barracks, and secure residential institutions are exempt from this classification.

Moreover, the BSA broadens the scope of liability to encompass historic defects, targeting developers, contractors, manufacturers, marketers, and any professionals involved in the building's construction process.

The position of commercial property under the BSA

Some of the provisions of the Act are relevant to commercial property. Notably, building liability orders under the Act apply to all properties, regardless of their height or intended use. This underscores the legislation's broad scope and its potential impact on a wide array of property types.

Moreover, the 'higher-risk buildings' definition under the Act includes a requirement for a residential component, such as one or more dwellings or residential units. However, it's important to clarify that buildings need not be exclusively residential to fall into this category. Mixed-use developments, which combine commercial spaces with residential units, can also be considered higher risk if they meet the Act's other criteria mentioned below.

Who bears the costs of remedy?

Developer Remediation Contracts

In instances where buildings exceed 11 meters in height, the BSA establishes a clear hierarchy of financial responsibility for rectifying defects. Initially, developers bear the cost for remedial actions under the Developer Remediation Contracts.

Long Leaseholders

Typically, long leaseholders are mandated to contribute to the expenses of significant works through service charges as outlined in their lease. For historic safety defects, government aims that the primary liability lies with the developers, landlords and freeholders rather than long leaseholders. This protection of long leaseholders covers ‘any defect caused during the construction or refurbishment of a building in the past 30 years that causes a risk to people’s safety from the spread of fire, or the collapse of some or all, of the building’.

Cladding Remediation Costs

A further statutory protection is also offered by the BSA for cladding remediation costs.

Depending on the height of a building, two different cladding schemes are available. One is for the buildings between 11-18m or those over five storeys containing minimum two flats and higher-risk buildings as defined above. For higher-risk buildings specifically, the Building Safety Register has been established. Under the BSA and the Fire Safety (England) Regulations 2022, accountable persons and responsible persons are required to electronically share building information with the regulators.

Building owners will not be able to charge qualifying leaseholders for cladding remediation works.

For non-qualifying leaseholders, a full protection is afforded if their building owner is the developer or associated with the developer. A Cladding Safety Scheme (‘CSS’) is available for such cladding related remediation. For higher-risk buildings in the Greater London area, the Greater London Authority operates the Building Safety Fund.

What are the consequences for non-compliance?

Should a building safety concern arise or violations of the BSA or the Defective Premises Act be confirmed, the High Court possesses the authority to issue a Building Liability Order. This order empowers the court to hold individuals connected with a liable organisation accountable, even in cases where the companies have dissolved or faced insolvency.

The objective here is to deter developers from creating separate business entities for each project, only to dissolve them after construction completion to evade responsibility for any construction flaws. This measure grants courts an ability to pierce the corporate veil and assign responsibility for any resultant damages to the parties involved.

New Limitations under the BSA

Previously, claims for construction-related defects had to be initiated within 6 years from the completion of the work. However, with the BSA, the legislation now allows for:

• Claims to be made retrospectively for up to 30 years for issues that arose before 28 June 2022;
• Claims to be made retrospectively within a 15-year period for issues occurring after 28 June 2022.

Moreover, this adjustment encompasses claims related to defective cladding, widening the scope of protection for homeowners, leaseholders, and landlords. Significantly, these rights are not limited to the original purchasers but extend to subsequent property owners, offering broader recourse for addressing construction defects.

What will change after 1 April?

Starting on 1 April, the transition period ends, and there will be crucial changes that you need to bear in mind:

• All the buildings now need to satisfy the BSA requirements.
• The higher-risk buildings will be required to get a Building Assessment Certificate. The Certificate can be obtained from the Building Safety Regulator by submitting the Safety Case. This Certificate indicates that the building meets the safety requirements.
• Registered building inspectors will be the only authorised individuals with the authority to conduct the building control activities.
• The Professional Conduct Rules for Registered Building Control Approvers (RBCAs) and the Code of Conduct for Registered Building Inspectors (RBIs) will come into force. These rules and codes set ethical and professional standards. Therefore, professionals and building control bodies must adhere to mandatory codes and standards for building control.
• A gateway system will be introduced, allowing the Building Safety Regulator (BSR) to evaluate if the risks, roles, and responsibilities associated with a building's construction are clearly comprehended at various construction milestones. This pivotal measure aims to guarantee that safety measures are thoroughly incorporated throughout every stage of a building's development.

The BSA undoubtedly heralds a transformative era for the construction industry, compelling professionals to swiftly adapt to a new landscape of regulations, regimes, and responsibilities. As the industry stands on the cusp of these significant changes, all stakeholders must gain a comprehensive understanding of their forthcoming duties and make adjustments required in their operational protocols.

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