Building Safety Act: Implied terms in leases

The Building Safety Act 2022 (“BSA”) introduces implied terms into residential leases in buildings which qualify as Higher Risk Buildings (“HRB”) by way of including new sections into the Landlord and Tenant Act 1985 (“LTA”). For more information on what qualifies as an HRB please see the blog prepared by our Building Safety and Cladding Team.

The implied covenants are concerned only with the dwellings in HRBs. Landlords of premises which are solely commercial in nature need not take further action in this respect.

Accountable Person

The BSA introduces the “accountable person”. The accountable person, in most cases, will be the person who holds the legal estate, however this is not always the case, and the accountable person will be the person who maintains responsibility for the HRB’s common parts.

The accountable person is obliged to comply with the building safety duties that are imposed by the BSA. Building safety duties are discussed in the linked blog in more detail, though generally speaking, these require that the accountable person takes all reasonable steps to prevent fire and structural safety risks from occurring, and to mitigate the seriousness of an event in the unfortunate situation one does occur.

In order to allow the accountable person to effectively carry out their role, the BSA deems it necessary to imply the following new covenants into relevant leases on the basis that the requirements of the BSA could not have been considered at the date of the leases.

Landlord’s Implied Terms

The terms implied into residential leases and which all landlords of HRBs are required to comply with are:

• where the landlord is an accountable person for the HRB, to comply with their building safety duties;
• to cooperate with any person in connection with a person complying with their building safety duties; and
• where a special measures order (see previously linked blog) in relation to the HRB is in force, to comply with that order so far as it relates to the landlord.

Tenants Implied Terms

To allow for the landlord to comply with their obligations as set out above, there must be equivalent terms implied into relevant leases by which the tenants must comply:

• the Tenant must allow the accountable person to enter the premises for a building safety purpose (i.e. for an accountable person to inspect the premises or to carry out works in each case so as to comply with their building safety duties);
• where the tenant is a resident of an HRB, to comply with the tenant’s duties under sections 95 and 97 of the BSA; and
• to comply with any special measures order – so far as it relates to the tenant.

Service Charges

There will be a cost to the accountable person in complying with these obligations. The BSA acknowledges this has inserted a new section into the LTA which operates to amend the service charge provisions of all relevant leases in a HRB. This will allow a landlord to recover the costs incurred by the relevant person in taking the required building safety measures including legal and professional fees.

Landlords however need to exercise caution as not all costs are capable of recovery, for instance completing works to rectify a safety defect to the building would not be recoverable, and we would advise taking advice prior to issuing any service charges in respect of costs incurred in complying with building safety duties.

Need further advice?

It is critical that landlords and accountable persons have a thorough understanding of their obligations under the BSA. If you are a landlord or accountable person in respect of an HRB and you have questions about the Building Safety Act, the Building Safety Fund or any cladding and/or building safety issues, please contact a member of our Building Safety and Cladding Team.

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