The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023 were passed on 20 July (the "New Regulations"). Almost identically named to The Building Safety (Leaseholder Protections) (England) (Amendment) Regulations 2023 (the "February 2023 Regulations"), the added "etc." packs a punch!

The Building Safety Act 2022 restricts landlords recovering via service charges certain costs of measures to deal with safety defects in buildings over 11 meters/5 storeys high. The position of the landlord on 14 February 2022 dictates what the current landlord can re-charge. Costs for dealing with defects in the building cannot be recovered from:

  • any tenants where the landlord was responsible for the defect or associated with the person responsible; or
  • qualifying tenants where the wealth of the landlord's group exceeded a certain threshold.

Re-writing Regulations

In July 2022, The Building Safety (Leaseholder Protections) (England) Regulations 2022 prescribed the calculation for the landlord's net worth and imposed an obligation on current landlords to provide a Landlord's Certificate to qualifying leaseholders following certain triggers. They contained a fatal drafting error, later fixed by the February 2023 Regulations.

The Landlord's Certificate, accompanied by prescribed information and documents, is onerous and a "one-size fits all" approach didn't work. The New Regulations attempt to streamline it, clarifying the information/documents needed depending on which tests are met. Concerns and criticism of the drafting have already been raised, not least the question of confidence in the need for a second set of regulations to fix flaws in the original drafting.

Fatal Consequences

However, lurking in the New Regulations is a fatal consequence for landlords who fail to comply with a simple administrative task. Whenever a landlord issues a Landlord's Certificate, it must provide a copy to any other landlord in the building or any management entity within one week (such as any RTM/ RMC). Failure to do so strips the landlord of the ability to recover as service charge any of the costs of dealing with the defect from any tenants in the building (whether they are qualifying leaseholders or not). The penalty also applies if the current landlord doesn't pass on a leaseholder's certificate within a week of receiving one. Prepare the floodgates for professional negligence claims...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.