Qualifying leases (Part 2) - what is a building safety risk and when do landlords have to pay for works to address the risks?

The construction market is familiar with the need for cladding remediation works.  However the Building Safety Act relates to more than just cladding.  The Act has introduced the concept of a “building safety risk” which is defined as:

A risk to the safety of people in or about the buildings arising from:

1. the spread of fire; or
2. the structural failure.

(Section 62(1))

Guidance from the  Health and Safety Executive (HSE) provides that structural failure might include collapse of the whole or a part of a building (such as one residential unit, common areas or a multiple-floor collapse), the undermining or compromise of foundations or aggressive conditions due to chemical/biological processes. Building safety risks will differ from one building to the next.

Where there is a building safety risk, the landlord of a qualifying lease (see Kate Rushworth's blog as to what amounts to a qualifying lease) will have to pay for the total cost of remedying such a risk where the landlord:

1. was involved in the works which caused the defect (or is associated with an entity that was); or
2. the landlord’s group net worth is at least equal in value to sum of the number of affected buildings multiplied by £2 million. Note the reference to buildings rather than individual dwellings and that this applies even if the landlord wasn’t involved in (or associated with) the works as envisaged under (i) above).

Outside of (i) and (ii) above, a landlord may be able to ask qualifying leaseholders to contribute to the cost of buidling safety risk works. Kate Rushworth will discuss when this might be the case in her blog next week.

NB: the Act allows for the definition of building safety riskto be expanded to include any other matter identified by the Department for Levelling Up, Housing and Communities (DLUHC)  (but only after they have first consulted with the HSE and anyone else that they consider appropriate). This may include any other matter which the HSE considers might cause an incident that would result in death or serious injury to a significant number of people (sections 62 and 63).