Definition of ‘relevant defect’
This guidance summarises the types of defects to which the leaseholder protections in the Building Safety Act 2022 apply.
Applies to England
Summary
1. There are a variety of building defects that could be considered to be a historical building safety issue.
2. This summarises the types of defects to which the leaseholder protections in the Building Safety Act 2022 apply.
What the legislation means
3. The law now defines what a ‘relevant defect’ is for the purposes of the leasehold protections, meaning the costs of remediating the defect are covered by the statutory protections.
4. For a defect within a building to be defined as a ‘relevant defect’, it must meet all of the following criteria:
a. it puts people’s safety at risk from the spread of fire, or structural collapse
b. it has arisen from work done to a building, including the use of inappropriate or defective products, during its construction, or any later works (such as refurbishment or remediation)
c. it has been created in the 30 years prior to the leaseholder protections coming into force (meaning the defect had to be created from 28 June 1992 to 27 June 2022), and
d. it relates to at least one of the following types of works:
- the initial construction of the building,
- the conversion of a non-residential building into a residential building, or
- any other works undertaken or commissioned by or on behalf of the building owner (the definition of ‘building owner’ can be found in What are my building owner’s legal obligations?), or management company.
5. Work done before or after 28 June 2022 to remediate a relevant defect that was itself created during one of the above pieces of work is also covered by the leaseholder protections.
6. Defects that have arisen in relation to professional services are also covered by the definition of relevant defect. This would include, for example, if an architect or building designer specified the inappropriate use of flammable materials on a building and the contractor followed those designs.
7. This definition of relevant defect covers work needed to put right and ease historical building safety issues, but not, for example, wear and tear or routine maintenance.
How will this affect you, the leaseholder?
8. If you have a qualifying lease in a relevant building, and the defect identified in your building is a relevant defect, then the cost of putting right that defect will qualify for leaseholder protections.
9. If you have a qualifying lease in a relevant building, and you paid towards any relevant defects (including in relation to cladding systems and non-cladding defects) or interim measures from 28 June 2017, this will count towards the leaseholder caps.
10. If a defect within your building does not satisfy all of the criteria 4a, 4b, 4c and 4d (as above), then it does not fit the definition of a relevant defect. This means that the defect does not qualify for leaseholder protections and so you could be asked to contribute to the costs associated with fixing the defect, depending on the terms of your lease.
Examples
Example 1:
- A building safety risk in a high-rise building was created due to the installation of a flammable cladding system in 2005.
- The cladding system gives rise to a building safety risk, as it could put people’s safety at risk by accelerating the spread of fire.
- The cladding system would fall within the definition of a relevant defect, as the defect was created within the past 30 years and gives rise to a building safety risk.
- The leaseholder protections would therefore apply to the costs associated with mitigating against the risk posed.
Example 2:
- A contractor built a medium-rise block of flats with defective foundations in 1995 which now need remedial work to mitigate against the risk of structural collapse of part of the building.
- The defects in the foundations fall within the definition of a relevant defect as the building was completed within the past 30 years and give rise to a building safety risk.
- The leaseholder protections therefore apply to the costs associated with remediating the foundations.