Are you a member of a tenants’ management company or do you own a share of the freehold of your block? If your building is classified as a 'higher risk building', the latest provisions of the Building Safety Act which came into force in April 2023 could affect your management of it.
In our last newsletter we commented on the new service charge protection regime for tenants under the Building Safety Act 2022 (the Act) regarding building safety remediation works. Now, provisions affecting the management of safety risks in higher risk buildings must be complied with. The exact definition of a higher risk building is complicated but in general terms refers to a building which contains at least two residential dwellings and is at least seven storeys or 18m high measured from the surface of the ground.
Appointment of an accountable person
An accountable person must be appointed for every higher risk building. They are responsible for the management of the building in accordance with the Building Safety Act 2022. Broadly, the accountable person must be the person who owns or is responsible for repairing the common parts of the building. This means that it could be an individual owner or, for example, a tenants’ management company.
Compulsory registration of all higher risk buildings
The accountable person must register the higher risk building with the Building Safety Regulator (the Health and Safety Executive) by 1 October 2023. Failure to do so is an offence punishable by a fine or imprisonment. Registration can be completed online on the gov.uk website Register a high-rise residential building - GOV.UK (www.gov.uk). Certain basic information will need to be supplied in the first instance, to be followed by further details.
Management of higher risk buildings
The accountable person must:
- identify potential hazards affecting the risk of fire spread and the structural safety of the building;
- decide who may be harmed and how that might happen;
- consider the risk of the hazards becoming a major incident; and
- determine the measures/works required to reduce the risk of harm to residents should there be a major incident.
All these matters should be covered in a safety case report which should be sent to the Building Safety Regulator. Each time there is a new accountable person for a building (e.g. on the sale of the freehold) a new case safety report should be prepared. The report also needs to be revised when any steps have been taken to address risks at the building.
As well as identifying risks, the accountable person is also under a duty to take all reasonable steps to prevent them from materialising and/or to reduce the severity of that risk.
The Building Safety Regulator can enforce the duties under the Act against the accountable person by means of a compliance notice requiring any contravention of the duties to be put right within a fixed timeframe. Failure to comply with such notice is a criminal offence punishable imprisonment of up to two years and/or a fine.
Special provisions to assist
Complying with these regulations is no mean feat, even for an experienced property professional. Where the accountable person is a company run by the tenants, the Act implies a new provision in the articles of association allowing a new director to be appointed and paid for helping with the building safety function. Other landlords may need to ensure that their managing agents are up to speed on the requirements.
The Act implies new covenants into leases requiring tenants to allow relevant people access to their flats for the purpose of carrying out the new duties under the Act. It also confirms that the cost of complying with the new building safety requirements (including the payment of the building safety director where applicable) will be recoverable from the tenants through the service charges for the building.
For more information
For further information, the Building Safety Regulator, the Health and Safety Executive has some very useful information on its website Building Safety Regulator - Building safety - HSE (Health and Safety Executive) . Alternatively, please do contact us or your managing agent.