Building Safety Act 2022: frequently asked questions

We asked the Department for Levelling Up, Housing and Communities (DLUHC) to answer common questions from conveyancers on the Building Safety Act 2022 (BSA 2022).

A person buying a non-qualifying lease may be making a different bargain than if buying a qualifying lease in the same building. Why do these discrepancies exist?

DLUHC answer:

The government position is that the primary responsibility for resolving issues on buildings needing remediation is with those who caused them.

Where developers remain in existence, they must fix their own buildings.

All leaseholders – qualifying or not – are protected from paying towards the remediation of both unsafe cladding systems and non-cladding defects if their landlord is, or is associated with, the developer responsible for that safety defect.

The same protection applies where developers have signed the government remediation contract, and all leaseholders can benefit from government funding for the remediation of unsafe cladding.

The government has made available support to remediate unsafe cladding, whilst recognising some circumstances – such as investments for commercial reasons – where those owning should contribute.

Once the property has been brought up to the relevant standards as part of remediation work, DLUHC would expect the qualification point to essentially become moot.

Until the works are complete, it is for individual owners of non-qualifying leases to determine whether they want to sell their properties, and for the market to determine the appropriate value of those properties.

What is the position for properties in blocks over 18 metres?

DLUHC answer:

Buildings which are at least 18 metres or have at least seven storeys are defined as a ‘higher-risk building’.

An accountable person is the duty holder during a higher-risk building’s occupation and must meet the statutory duties as set out in Part 4 BSA 2922.

If an occupied higher-risk building has just one accountable person, they will automatically become the principal accountable person for that building.

Where there are two or more accountable persons, the one responsible for the repair of the structure and exterior of the building will be the principal accountable person in line with the statutory definition.

The Building Safety Regulator is charged with improving the safety and standard of buildings through three critical functions:

  • leading the delivery of the new regulatory regime for higher-risk buildings;
  • overseeing the safety and standards of all buildings; and
  • facilitating improvement in the competence of industry and building inspectors

The Building Safety Fund protects leaseholders from the costs of addressing life-safety fire risks, associated with cladding on high-rise residential buildings, where the building owner or developer cannot afford to do so.

Find out more about the Building Safety Fund and how to apply

The Health and Safety Executive has published information on the Building Safety Regulator’s plans and timelines.

What is the position for blocks under 11 metres?

DLUHC answer:

Leasehold properties in low-rise blocks of flats are less likely to need remediation than those in five storeys or 11 metre plus buildings.

They are not in scope of the legislation that caps the amount residents have to contribute to remediate.

Apartment buildings below 11 metres in height are deemed as lower risk by the government.

What is the position for leaseholder-owned blocks?

DLUHC answer:

The government’s guidance for leaseholders outlines the obligations the leaseholder protections place onto building owners, right-to-manage companies, resident management companies and named managers.

What is the position in Wales?

DLUHC answer:

The Welsh government is committed to improving building safety to ensure another tragedy like Grenfell Tower is avoided.

Whilst there are differences in approach to rectification of cladding defects and building safety from England, the overall impact should be safer buildings.

The Royal Institution of Chartered Surveyors (RICS) worked closely with the Welsh government to update its guidance for valuing properties with cladding to include Wales.

The Fire Safety Act 2021 was also implemented in Wales, by the Fire Safety Act 2021 (Commencement) (Wales) Regulations 2021, which came into effect on 1 October 2021.

The Building Safety Act 2022 has not yet been implemented in Wales, and no new national regulator such as the Building Safety Regulator has been set up.

We will share more information on changes in Wales as they develop.

See the Auditor General for Wales's report on building safety in Wales (August 2023).

Does the UK government funding only apply to external wall systems, and not wider fire safety remediation issues?

DLUHC answer:

The government’s Building Safety Fund and Cladding Safety Scheme provide funding to remediate or mitigate the fire safety risks presented by unsafe external walls systems.

The Building Safety Fund provides funding for buildings 18 metres and above. From July 2023, it is only open to buildings in Greater London.

The Cladding Safety Scheme provides funding for buildings in England 11 metres and above, and in Greater London between 11 and 18 metres.

Further information on the criteria for funding can be found:

What is the position in relation to non-cladding costs?

DLUHC answer:

The government’s guidance on the definition of non-cladding remediation sets out the position.

Are EWS1 certificates still required? How do they link in with the PAS 9980 assessment?

DLUHC answer:

Publicly Available Specification (PAS) 9980 is a methodology developed by the British Standards Institution (BSI) drawing on expert advice from professionals across industry.

It followed a rigorous development process, including a public consultation. 

PAS 9980 sets out how to carry out a detailed fire risk assessment of the external walls in buildings where a standard fire risk assessment has identified the need for one.  

Under the Fire Safety Act 2021, responsible entities are required by law to carry out a fire risk assessment of their buildings that includes the external walls.

Where a detailed fire risk assessment of the external walls is needed, DLUHC expects this will be done to the standard set out in PAS 9980.

EWS1 forms and the EWS1 process are a valuation tool designed by industry (lenders and valuers). They are not a statutory or regulatory requirement or a fire safety certificate.

It is a commercial decision by lenders whether to ask for an EWS1 form.

RICS has made clear that valuers must always have a justification for requesting an EWS1, and, that investigation and assessment underpinning an EWS1 should be undertaken in accordance with PAS 9980.

How do you get confirmation the government will pay if there is no developer?

DLUHC answer:

The responsible entity (the freeholder, right-to-manage company, housing association etc.) regularly updates residents and leaseholders when they apply for funding through the Building Safety Fund or Cladding Safety Scheme.

Leaseholders will therefore have evidence that their building has been deemed eligible for funding and at various key milestones.

The responsible entity should also be able to confirm directly to a conveyancer that a building has remediation funding.

What is the position of those who renewed or enfranchised their leases since 14 Feb 2022 and so have lost the status of having a lease as at that date?

DLUHC answer:

The Building Safety Act 2022 has been amended to ensure that the statutory protections for leaseholders continue where qualifying leases are extended, varied or replaced by an entirely new lease.

This means that the statutory protections limiting or preventing remediation costs from being passed onto qualifying leaseholders will continue to apply to the new lease.

The amendment is retrospective, so that it applies to leases extended, varied or replaced since 14 February 2022. This means that those leaseholders who have, for example, extended their leases or are in the middle of the process are covered by the protections.

This amendment came into effect on 26 December, two months after royal assent of the Levelling Up and Regeneration Act 2023.

What is the guidance for someone currently wanting to enfranchise, extend or vary their lease?

DLUHC answer:

As the Building Safety Act 2022 has been retrospectively amended so protections will not be lost if a lease is enfranchised, extended or varied (as above).

Standard processes apply for an enfranchisement, extension or variation.

Will there be a national register for certificates?

DLUHC answer:

The Building Safety Register will operate a register of high-rise buildings (HRBs).

This should include Building Assessment Certificate (BAC) details.

There are currently no plans to create a register for leaseholder deed of certificates or landlord certificates.

Will there be a record of buildings which have failed an assessment for a Building Assessment Certificate (BAC)?

DLUHC answer:

Once the regime is in a steady state, all high-rise buildings (HRBs) should have a valid Building Assessment Certificate (BAC) in place.

The Building Safety Register (BSR) will operate a register of HRBs: this should include BAC details.

While a notice of a refusal for a BAC application is sent only to accountable persons (APs), for the BSR to issue a refusal indicates that there are wider problems in terms of compliance with duties.

If the BSR takes enforcement action against APs – for example, by issuing compliance or enforcement notices – such notices need to be displayed by the principal accountable person (PAP).

The BSR will also work with applicants where the failure is minimal, rather than outright rejection of an application, to try and overcome any problems.

A transition period for assessments could last for a number of years. During this time and until assessments are completed, the lack of a certificate maybe because the building has not yet been called in.

How are conveyancers supposed to know/confirm the height of buildings?

DLUHC answer:

The building owner, or their managing agent, should know this as part of their building management role (for example, to assess risk under the fire safety order) and can provide and confirm this.

Conveyancers are not expected to confirm the height of a building.

Building owners and managing agents do not understand the landlord certificate. Will the four-week deadline to complete it be extended?

DLUHC answer:

Building owners and their managing agents need to educate themselves on the need for a landlord certificate and how to complete it.

It is a legal requirement and their responsibility.

The government’s view is that four weeks is adequate time to complete the certificate. There are no plans to extend the time.

If landlords do not complete the landlord certificate within the four-week period, then the landlord/owner accepts liabilities for completing remediation work by default.

So long as the leaseholder has asked for a landlord certificate, the lack of provision of a landlord certificate within four weeks means that the leaseholder qualifies for the leaseholder protections by default and cannot be charged for any remediation costs.

What about when we are simply unable to ascertain the position of the leaseholder on 14 February 2022?

DLUHC answer:

DLUHC has not been made aware of a case where leaseholder information has not been able to be established and would welcome any examples of this.

There are routes to find out who the previous leaseholder was as well as the price the property was sold at before that date through HM Land Registry.

Will there be any work with lenders to stop mortgage offers being withdrawn in these matters?

DLUHC answer:

DLUHC has a good working relationship with lenders offering mortgages on properties in scope of the BSA and provide feedback, such as making amendments to Part 2 of the UK Finance Handbook.

DLUHC hopes to continue that beneficial working arrangement with lenders.

DLUHC would like to know if lenders are consistently withdrawing offers due to building safety issues.

Email with lender details.

A client has received a letter instead of a landlord certificate from a housing association saying they'll take care of remediating the building and not pass on costs. Is this acceptable?

DLUHC answer:

DLUHC has spoken to major lenders about 'letters of comfort' and whether they would be happy to accept these instead of an official landlord certificate, and they indicated this would be accepted as a substitute to a landlord certificate from a housing association (or other freeholder).

You should:

  • check with your clients’ lender that this is the case and obtain this confirmation in writing
  • make it clear to your client that the lender has chosen to accept this even though it doesn’t comply with the legislative requirements

What is the position for shared ownership properties?

DLUHC answer:

It is not intended that shared ownership properties are treated differently.

The added protections afforded to qualifying leaseholders apply to shared ownership properties, other than differences to caps.

See the government's frequently asked questions on leaseholder protections and shared ownership.

We’d like to assess our BSA 2022 exposure to date – how can we best achieve this?

DLUHC answer:

You may want to begin by reviewing files where you have already acted in these types of matters.

Different considerations may apply depending on when the transaction took place:

  • 14 February 2022
  • 28 June 2022 when the BSA mainly came into force
  • December 2022 when the UK Finance Handbook Part 1 requirements were released
  • July 2023 when the UK Finance Handbook Part 1 was amended
  • establish which lenders you acted for and their requirements in Part 2 of the UK Finance Handbook – repeating the assessment for any amended requirements from individual lenders of the handbook and dates of amendments
  • 31 July 2023 when the consumer duty for lenders came into force
  • August 2023 and other dates when the regulations were amended
  • leases enfranchised after 14 February 2022 but brought back into scope by the Levelling Up and Regeneration Act 2023

What responsibilities do lenders have to issue warnings to clients?

DLUHC answer:

On 31 July 2023, the consumer duty placed on lenders by the Financial Conduct Authority (FCA) came into force.

It sets a higher standard of consumer protection in financial services. The duty means borrowers should get:

  • the support they need, when they need it
  • communications they understand
  • products and services that meet their needs and offer fair value

The FCA will monitor how firms are putting the rules in place and will take action against those that are not following them.

I want to know more

Created in response to your initial concerns about the legislation and developed in collaboration with government and industry stakeholders, our guide to the BSA 2022 contains background information and high-level guidance, signposting the key sources of information you need to navigate it with confidence.

Building Safety Act 2022: a guide for property lawyers (1st edition) provides a practical guide, with a focus on the implications for purchasers, leaseholders, landlords and managing agents, tenants, property developers, and those advising them.

Watch this online classroom, led by Philip Askew, on best practice guidance when advising clients on higher-risk buildings.

We’re keen to hear your views on the guide and about the BSA 2022 as it develops. We’ll continue to work closely with government to make sure your views are heard by decision-makers.

Email to share your feedback.

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