Building Safety Act 2022: key terms and definitions

This page covers:

• leaseholder protections
• relevant building
• qualifying lease
• maximum amount that can be charged for non-cladding remediation to qualifying leaseholders
• non-qualifying lease
• relevant defect
• leaseholder and landlord's certificates

This is a non-exhaustive list. You are encouraged to access government guidance and the legislation.

Leaseholder protections

To establish whether leaseholder protections are applicable, several criteria need to be met.

The leaseholder is likely to qualify for protection from the costs of remediation if the flat being acquired was, on 14 February 2022:

• the leaseholder's only or main home, or
• the leaseholder did not own more than three dwellings in the UK in total and
  • is in a ‘relevant building’ and is demised by a ‘qualifying lease’ granted before 14 February 2022 (‘the qualifying time’) and
  • has ‘relevant defects’ (which relate to a safety risk arising from the likely spread of fire or the prevention of a collapse of the building), and
  • is in a building that was either constructed after 28 June 1992 but before 27 June 2022 or if the defect was created by works carried out in that time.

The key parts of the BSA 2022 for leaseholder protections are:

• Part 5 (remediation of certain defects) sections 116 to 125, and
• Schedule 8 (remediation costs under qualifying leases)

In those sections:

1. sections 117 to 121 define “relevant building”, “qualifying lease”, “the qualifying time”, “relevant defect” and “associate”
2. section 122 and Schedule 8 contain protections for tenants in respect of costs connected with relevant defects and impose liabilities on certain landlords
3. section 123 makes provision about remediation orders, under which a landlord in a relevant building is required to remedy certain relevant defects
4. section 124 makes provision about remediation contribution orders, under which an associate of a landlord in a relevant building is required to contribute towards the costs of remedying certain relevant defects
5. section 125 makes provision about cases where a company that is a landlord in a relevant building is being wound up and confers on the court, powers in respect of persons associated with the company

Relevant building

A ‘relevant building’ is one which is: 

• at least 11 metres in height or has at least five storeys (whichever is reached first) 
• contains at least two dwellings 
• not a leaseholder-owned building 

It must comply with the full definition of ‘relevant building’ set out in the government guidance. 

The BSA 2022 requires building owners to undertake building safety remediation works to ‘relevant buildings’.

It applies caps and exclusions to limit, or prevent the recovery of, the cost of remediation works, from the leaseholders, through their service charges. 

Not all leases in ‘relevant buildings’ benefit from the same caps and exclusions. 

In certain circumstances, the protection can extend to commercial leases within a mixed-use building that contains some residential dwellings and qualifies as a ‘relevant building.’ 

The provisions are complex and various levels of protection apply, depending on a variety of factors including:

• the cost of the work, the type of work and who is taking responsibility for the issue that necessitated remediation 
• whether the landlord has pursued all practicable routes of recovery before seeking to re-charge costs through the service charge mechanism 
• whether the current landlord (and its predecessors) supplied prescribed documentation to the leaseholders when it was required to
• the net worth of the party which was the landlord on 14 February 2022 and its group
• how many other properties were owned by the party who was the leaseholder on 14 February 2022 
• what each leaseholder's property was worth on 14 February 2022 

The position is different for properties in blocks under 11 metres, between 11 and 18 metres, and over 18 metres. 

It is possible that where a building is not a relevant building or a higher risk building because of its height or number of storeys, extra floors may be added by developing the airspace above the building so that it may become one in the future.

This may provide benefits if the building becomes a relevant building, and disbenefits as service charges may increase because of the increased management obligations imposed on landlords of higher risk buildings.

It may sound straightforward to assess the height of a building or the number of floors it has, but measurements for this purpose must take place on a highly technical basis, which may not produce the result you may expect, so this is not something you should assess.

A 2023 case, where a landlord incorrectly identified a building as being too short to qualify for protections, highlights the risks involved. 

Leaseholder-owned buildings are not “relevant buildings.”

Regulation 2 of the Building Safety (Leaseholder Protections) (England) Regulations 2022 provides that:

“For the purposes of section 117(3)(c) of the BSA 2022 the freehold estate in the building or part of the building is leaseholder owned where—

the freehold estate is solely owned by tenants in the building, whether through a corporate structure or otherwise; and

paragraphs (a), (b) and (d) of section 117(3) of the BSA 2022 do not apply in relation to the building.”

Qualifying lease

If your client has a qualifying lease and lives in a relevant building with an unsafe cladding system, it is likely that their building owner will be responsible for covering all costs of the cladding remediation.

If this is the case, the client will not be charged for the cost of fixing or replacing any unsafe cladding systems unless the long leaseholders are the building owner themselves.

A lease is a qualifying lease if: 

1. it was granted before 14 February 2022 (‘the qualifying time’)
2. it was granted for more than 21 years on a single dwelling in a ‘relevant building’ 
3. the leaseholder is liable to pay a service charge
4. on 14 February 2022, the dwelling was the leaseholder’s only or principal home, or the leaseholder owned no more than three dwellings in total (whether as leaseholder or freeholder)

The status on 14 February 2022 is transferred to future buyers, meaning if a property eligible for the protections on 14 February 2022 is sold, the new buyer benefits from the protections.

The first three requirements are straightforward to establish but the fourth may prove more difficult to establish conclusively.

There is a presumption that the lease is a qualifying lease if the first three conditions are met.

Leases of residential properties are presumed to be "qualifying" until this is countered by the leaseholder either:

• providing a leaseholder deed of certificate confirming that none of the relevant conditions were met, or
• failing to respond to a request from the landlord for the provision of a leaseholder deed of certificate

Qualifying leaseholders are those who occupy the affected property (in a block above 11 metres) as their principal home or if it is the only property they own, even if they don’t live there.

Buy-to-let owners can qualify if they own a total of up to three properties in the UK. If they live in the affected property as their principal home will always qualify, even if they own more than three properties in total.

The fourth requirement means it may not be possible to identify all flats in a particular block as ‘qualifying’ because the status of each individual leaseholder at the relevant time needs to be considered.

The Levelling Up and Regeneration Act 2023 introduced sections 119(3A) and 119A which aim to resolve the concerns about whether leases extended after the qualifying date were/are non-qualifying because of the extension, by stating that a “connected replacement lease” will also be a qualifying lease.

A connected replacement lease is a new lease, where the leaseholder is required to pay a service charge, was granted on or after 14 February 2022 and replaces another lease which is a qualifying lease, or other leases where at least one lease is qualifying.

These provisions are retrospective, so are to be treated as if they were enforceable on 28 June 2022 (the date section 119 of the BSA came into force). 

Read the government definition of a 'qualifying lease' 

Maximum amount that can be charged for non-cladding remediation to qualifying leaseholders

The BSA 2022 ensures that any contribution required from qualifying leaseholders for non-cladding defects and interim measures (including waking watch costs) is capped and spread over 10 years.

Costs already paid since 28 June 2017 are taken into account towards the cap.

If remediation costs exceed the cap, building owners are required to make up the difference.

Historical safety remediation costs cannot be passed on: 

• where the developer who built or refurbished the building is – or is associated with – the building owner 
• where the landlord has a net worth of more than £2 million per relevant building
• where the property is valued at below £325,000 in Greater London or £175,000 elsewhere in England 

Costs that may be passed on up to a capped amount: 

• waking watch costs 
• remediation of non-cladding defects, for example:
  • replacement of a fire door that has prematurely degraded and is no longer safe 
  • installation of missing fire compartmentation 
  • inadequate structural fire protections presenting an unacceptable risk of early collapse in fire occurrences 
  • inadequate structural design presenting an unacceptable risk of collapse (for example, balcony design which presents an unacceptable risk of vertical fire spread) 
  • professional services in relation to relevant works (for example, surveys to determine relevant works)

Caps that can be legally charged for non-cladding remediation costs for qualifying leaseholders

This table sets out the maximum amount that can be charged for non-cladding remediation to qualifying leaseholders over 10 years:

The protection from these remediation costs applies only to 'qualifying leases' in a 'relevant building'.

Non-qualifying lease

The government has confirmed that those with non-qualifying leases will not be charged for the cost of fixing or replacing any unsafe cladding systems.

If the original developer owns the building – or is linked to the freeholder – the leaseholders cannot be charged for any costs.

If someone holds a non-qualifying lease, there is no cap to the sum that they can be charged since Schedule 8 BSA 2022 will not apply.

However, they cannot be charged more than if the BSA 2022 did not exist. 

Any work that falls outside the scope of the BSA 2022 will be claimed under the usual procedure set out in section 20 of the Landlord and Tenant Act 1985.

The government says the qualifying or non-qualifying status of the lease should have no bearing on this. 

Read the government guidance on cladding system remediation costs

Relevant defect

A ‘relevant defect’ is one which: 

• puts people’s safety at risk from the spread of fire, or structural collapse 
• has arisen from work done to a building, including the use of inappropriate or defective products, during its construction, or any later works (such as refurbishment or remediation)
• has been created in the 30 years prior to the leaseholder protections coming into force (from 28 June 1992 to 27 June 2022), and
• relates to at least one of the following types of works:
  • the initial construction of the building
  • the conversion of a non-residential building into a residential building, or
  • any other works undertaken or commissioned by or on behalf of the building owner (see the government definition of ‘building owner’) or management company 

See the government definition of a 'relevant defect'

Leaseholder and landlord's certificates

The government guidance on mandatory information required from leaseholders and building owners:

•  sets out the information required to complete the leaseholder deed of certificate and what landlords must provide in the landlord's certificate
• provides downloadable and editable versions of both documents

Further government guidance sets out frequently asked questions about the leaseholder deed of certificate.