The Act came into force on the 1st of April this year; and while providing further necessary protections for residents in high rise buildings, there is more work for busy conveyancers.
The legislation reflects the recommendations made by Dame Judith Hackitt in her review of fire safety and building regulations after the tragedy that claimed the lives of 72 people.
Though related guidance has been sorely lacking –the Conveyancing Association has stepped up to the plate with detailed guidance specifically for conveyancing firms. Practitioners will also note that the Leasehold Property Enquiries form has been updated to account for the new duties and responsibilities under the Act.
This new legislation imposes new duties on those responsible for the build and management of fire and building safety in ‘higher risk buildings’ i.e. those which are over 18 metres high or 7 storeys or more, contain at least two residential units and are occupied. (There are also provisions in respect of defects in self-contained buildings which are at least 11 metres or 5 storeys high).
And note that the rules do not only impact new builds - existing buildings are affected by the new rules if they are occupied. (Leaseholder-owned buildings are not within scope).
Two new important roles have also been created:
- A Building Safety Regulator (who has powers of enforcement) – all higher risk buildings must be registered with the regulator within 6 months (of 1 April) or prosecution could follow
- Accountable Persons (landlords and freeholders responsible for repair of the building).
Empty apartment blocks
Even though the new legislation does not theoretically apply to unoccupied high rise apartment blocks, it would be prudent to comply with the duties if it’s intended to have the property occupied in future.
Note also that, for instance, the Housing Act 2004 gives the local authority powers to ensure properties – even potentially those that are unoccupied - are safe and suitable to live in.
If you’re acting for the seller of an unoccupied flat, for instance as the leaseholder has died, it’s important that suitable unoccupied home insurance is in place to cover the risks. Standard buildings insurance is unlikely to be sufficient if the flat is empty longer term, but Practice Enterprise’s own unoccupied property insurance is a dedicated and cost-effective product designed with Watchman Insurance for these scenarios.
What does this mean for conveyancers?
The Act has significant implications for conveyancers, not least because of the introduction of Leasehold Deeds of Certificate and the Landlord’s Certificate.
- If you’re acting for the seller of a flat falling within scope of the Act, a Leaseholders’ Deed of Certificate must be served on the landlord. This ‘self-certificate’ sets out the information required for the purposes of applying for leaseholder protection against remediation costs (a prescribed form is provided in Schedule 7).
- A landlord must provide a tenant with a Landlord’s Certificate in specific circumstances, eg within 4 weeks of a leaseholder notifying them of an impending sale; and when the landlord intends charging the tenant remediation costs through the service charge. Without a certificate, remediation costs cannot be passed on to leaseholders. The prescribed form for the certificate can be found here.
The CA’s immensely useful Conveyancer Guide covers the above key areas, as well as how to determine the building’s height and number of storeys; what relevant defects are covered; and who bears responsibility and for what.
It also includes useful FAQs and a range of questions to consider when dealing with transactions involving relevant buildings.
Conveyancers will also need to check whether it could be risky to act for a mortgage company where the property is a higher risk building within scope of the Act. They must check CML Handbook Part 2 for the lender’s specific instructions before deciding how to proceed.
If you'd like to learn more about topics like this, our webinar learning catalogue is available here.