Registration of Higher Risk Buildings
As you may recall, all occupied buildings in England and Wales taller than 18 metres (or 7 storeys or more), containing at least 2 residential units required registration with the Building Safety Regulator as ‘Higher Risk Buildings (“HRBs”) by 1 October 2023. The Building Safety Regulator is effectively the Building Control authority for HRBs and any works carried out to HRBs will also need sign off from the Regulator (in lieu of the standard Building Control procedure). Since 1 October 2023, any new HRB must be registered before it can be occupied.
The register of HRBs maintained by the Regulator has now become available to the public and is searchable online using the postcode for the building. Details of the Principal Accountable Person and any Accountable Persons in respect of HRBs will also be available on the website. Knowing who has to register as a Principal Accountable Person or an Accountable Person can still be a tricky question to answer with careful consideration of the leasehold structure required. There has already been a Tribunal decision on the matter, which is discussed below.
Determining Who is Accountable
For some HRBs there will only be one Accountable Person, who will also be the Principal Accountable Person. Other HRBs will have more than one Accountable Person and one of them will be the Principal Accountable Person.
An Accountable Person (and there may be more than one) is either a person -
(a) holding a legal estate in possession in any part of the common parts; or
(b) not holding a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts.
Generally, the entity responsible for the structure and exterior will be the Principal Accountable Person, but it may not always be so clear, and it may require determination by the First Tier Tribunal.
Octagon Overseas Limited and others v Mr Sol Unsdorfer [2023] involved the determination as to whether Mr Unsdorfer, a manager of 5 HRBs, as previously appointed by order of the Tribunal pursuant to section 24 Landlord and Tenant Act 1987 was an Accountable Person for the purpose of the Building Safety Act. The Tribunal found that because Mr Unsdorfer’s management obligations were imposed by an order of the Tribunal and not directly upon Mr Unsdorfer by an enactment or under a lease, he did not have a relevant repairing obligation. Therefore, he did not satisfy any of the requirements that must be met for a person or entity to be an Accountable Person.
Further, managing agents under contracts to manage HRBs, but with no rights under a lease or repairing obligations, will not be entitled to register as an Accountable Persons.
Principal Accountable Persons Must Be Ready for April 2024
Whilst Accountable Persons and Principal Accountable Persons should already be complying with their duties under the Act, the Regulator will begin making requests for building assessment certificates from Principal Accountable Persons from 1 April 2024 as proof of compliance. For reference, the duties of a Principal Accountable Person comprise the following:
(a) preparing a safety case report for whole of the HRB, incorporating relevant information from other Accountable Persons;
(b) assessing and managing building safety risks;
(c) establishing and operating a mandatory occurrence reporting system;
(d) preparing a residents engagement strategy;
(e) setting up and operating a complaints procedure for residents and owners relating to building safety risks and performance by it and other Accountable Persons of their respective duties; and
(f) applying for a building assessment certificate (such application will need to include a building safety case report) when requested to do so by the Regulator and displaying it in a prominent part of the HRB.
Failure to comply carries the risk of a criminal offence.
As a point to note, the cost of carrying out these duties should be recoverable under the service charge (under residential leases only), even if there is no express provision for such. Section 112 (2) of the BSA inserts a new section 30D into the Landlord and Tenant Act 1985 (‘LTA 1985’), pursuant to which terms are implied into relevant leases of residential premises providing that the costs of building safety measures form part of the service charge payable by the tenant where the landlord or a superior landlord is a Principal Accountable Person or Accountable Person. The cost of works relating to the management of building safety risks will not be covered, however.
Client Alert 2024-045
