What are my building owner’s legal obligations?
This guidance outlines the obligations that the leaseholder protections in the Act place onto building owners, right-to-manage companies, resident management companies and named managers.
Applies to England
Summary
1. Building owners must make their buildings safe. This includes fixing historical building safety defects - both in their contracts with you, and in law. The definition of ‘building owner’ can be found in paragraph 6 below.
2. If you are the owner of a leasehold property, your lease will specify what you are legally liable for in respect of the costs for maintenance and repair. Any provisions relating to historical safety defects will now be overridden by the applicable provisions in the Building Safety Act 2022.
3. This section outlines the obligations that the leaseholder protections in the Act place onto building owners.
4. It also outlines the obligations on resident management companies, right-to-manage companies or named mangers.
Legal obligations placed onto building owners
5. The Act imposes new legal obligations on developers and building owners to protect leaseholders from paying for all, or some of, the costs of remediating relevant historical building safety defects. This might include costs to replace unsafe cladding systems on the external walls of their building, or internal issues such as inadequate fire doors or alarm systems.
6. The term “building owner” is used in this guidance to mean those with a superior lease of your building, including your landlords and freeholder.
Legal obligations placed onto right-to-manage companies, resident management companies and named managers
7. Right-to-manage companies (RTMs), resident management companies (RMCs) and named managers are treated as landlords solely for the purpose of apportioning remediation costs and not for the purpose of paying to remediate historical safety defects in buildings they manage.
8. The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023 provide that “L” (the landlord, RMC, RTM, or named manager) must issue a notice to a landlord in order to be able to recover the remediation amount.
9. The notice must contain the information set out in the regulations, which is the amount to be recovered and information on the appeals process.
10. L must notify any landlord that is associated with the developer of that landlord’s liability to pay for relevant measures in relation to relevant defects but may choose to pursue another liable landlord.
11. An amount payable by a landlord to L as a result of a notice is recoverable as a civil debt by L.
12. L may also apply to the First-tier Tribunal for a remediation contribution order.
Remediating a cladding defect
Obligations on a building owner when they meet the developer test
13. Building owners are responsible for paying for historical safety remediation costs if they are - or are associated with - the developer of the building.
14. A company is associated (or connected) with another company if they were the beneficiary of the trust at the qualifying time (14 February 2022), or were a partner in the partnership, a director of the company or were controlling the responsible company at any time in the 5 years prior to the qualifying time.
15. The conditions for determining what constitutes an associated person are outlined in Section 121 of the Building Safety Act. Regarding the question of whether an LLP counts as a body corporate for the purpose of these conditions, Section 1(2) of the Limited Liability Partnerships Act 2000 states that:
A limited liability partnership is a body corporate (with legal personality separate from that of its members) which is formed by being incorporated under this Act; and—
(a) in the following provisions of this Act (except in the phrase “oversea limited liability partnership”), and
(b) in any other enactment (except where provision is made to the contrary or the context otherwise requires),
references to a limited liability partnership are to such a body corporate.
The Limited Liability Partnership Act can be found here. Section 121 of the Building Safety Act was drafted with this definition in mind. As such, references to a body corporate in the Building Safety Act were intended to include LLPs within the definition of a body corporate.
16. Where your building owner is responsible for a relevant cladding defect, they have an obligation to pay for all the remediation costs and any associated interim measures (for example, waking watch), regardless of whether you have a qualifying or non-qualifying lease. This means that your building owner has an obligation to pay for all the costs associated with remediating the cladding defect when all the following criteria are met:
a. the defect is a relevant defect
b. the building is a relevant building
c. the building owner meets the developer test
Obligations on a building owner when they do not meet the developer test and you are a qualifying leaseholder
17. If your building owner does not meet the developer test, they still have an obligation to pay all the costs associated with the remediation of cladding and are legally prevented from passing any of these costs on to you if all the following criteria are met:
a. you are a qualifying leaseholder
b. the defect is a relevant defect
c. the building is a relevant building
Obligation on a building owner to deduct your contributions towards remediation
18. If you have paid towards the remediation of a relevant defect since 28 June 2017 (including interim measures such as waking watch), your building owner has an obligation to deduct such amounts you have already paid from your maximum capped amount.
Remediation of a non-cladding defect
Obligations on a building owner when they meet the developer test
19. You are fully protected in law from paying to remediate all defects if your building owner is - or is associated with - the developer who is responsible for that defect. You do not have to be a qualifying leaseholder for this to be the case.
20. This means that your building owner has an obligation to pay for all the costs associated with remediating the non-cladding defect when all of the below criteria are met:
a. the defect is a relevant defect
b. the building is a relevant building
c. the building owner meets the developer test
Obligations on a building owner when they do not meet the developer test and you are a qualifying leaseholder
21. In instances where your landlord meets the contribution condition, they have an obligation to pay for all costs associated with the remediation of non-cladding defects and interim measures. This means that your landlord has an obligation to pay for all the remediation costs when all of the below criteria are met:
a. the defect is a relevant defect
b. the building is a relevant building
c. you are a qualifying leaseholder
d. they (or the associated landlord group) has a net worth of at least £2 million per relevant building
22. In instances where criteria 21a, 21b and 21c are met, but your building owner does not have a net wealth of at least £2 million per relevant building (as per point 21d), they may be able to recoup a capped contribution from you to help pay for the required works, subject to the value of your lease. Your building owner has an obligation to deduct from your capped contribution any payments that you have made towards the remediation of a relevant defect since 28 June 2017. This includes interim measures such as waking watch.
Obligation on your landlord to complete the landlord’s certificate before passing on a charge
23. If your landlord wants to recoup some of the cost of remediating a relevant defect from you through the service charge, they have an obligation to provide you with a landlord’s certificate demonstrating that they are not – or are not associated with – the developer and do not meet the contribution condition (where you are a qualifying leaseholder).
24. They also have an obligation to provide you with a landlord’s certificate demonstrating their - and your - liability for historical safety defects in any of the following instances:
a. within 4 weeks of receiving a notification from you that your leasehold interest is to be sold
b. within 4 weeks of them becoming aware of a relevant defect which was not covered by a previous landlord’s certificate
c. within 4 weeks of you requesting a certificate.
d. within 4 weeks of becoming aware of a new leaseholder deed of certificate
25. Your current landlord must provide the RMC, RTM or named manager with a copy of the landlord’s certificate and leaseholder deed of certificate within one week of completion or receipt.
26. Your landlord has an obligation to include the necessary information and evidence as per the evidence outlined in the Leaseholder protections amendments guidance.
Obligation on your building owner to comply with remediation orders and remediation contribution orders
27. The Act introduces remediation orders and remediation contribution orders to ensure that those who are liable to pay for remediation under the leaseholder protections, do so.
28. If your building owner does not make arrangements to get work done where they are liable to do so under the Act, you and your fellow leaseholders are able to apply to the Property Chamber of the First-tier Tribunal for a remediation order or a remediation contribution order, or both.
29. If your building owner receives a remediation order from the First-tier Tribunal, they have an obligation to fix the defect specified in the remediation order by the specified timeframe. Failure to comply with the remediation order is enforceable by the county court.
30. If your building owner, or a previous building owner, receives a remediation contribution order from the First-tier Tribunal, they must make the specified payment within the specified timeframe, as set out in the order. Failure to comply with the remediation contribution order is enforceable by the county court.
Updates to this page
Last updated 10 August 2023 + show all updates
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Updated to reflect the latest leaseholder protections amendments.
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Section added on legal obligations placed onto right-to-manage companies, resident management companies and managing agents.
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First published.