Building Safety Act 2022: practice-based scenarios

Where a reference is to ‘property’, it will be assumed it is a property that falls within the BSA 2022 (that is, the property is over five storeys and/or over 11 metres high).

Leaseholder deed of certificate and landlord’s certificate

1. Incorrectly completed leaseholder deed of certificate

You are working on behalf of the buyer of a property.

The seller has produced a leaseholder deed of certificate but it is clearly filled out incorrectly. There are two boxes ticked in one section.

Suggested action

You ask the seller’s conveyancer for another copy of the leaseholder deed of certificate, pointing out the clear error in the document.

You could suggest that the seller reads the government’s frequently asked questions on the leaseholder deed of certificate.

2. Landlord provides a letter, not a certificate

You are working on behalf of the buyer of a property.

The seller’s landlord issues a letter instead of a landlord’s certificate, saying that they are not going to provide a certificate.

What this means

Depending on the lender offering the mortgage, they might want to see a copy of the letter.

But the fact a landlord’s certificate has not been produced within four weeks means the landlord has not provided a valid landlord’s certificate that complies with the requirements of the regulation, so the landlord will, by law, be:

• liable for all remediation costs, and
• unable to pass on any costs to leaseholders through a service charge for a relevant defect

Read the government’s guidance on mandatory information from landlords

3. Delay in supply of a landlord’s certificate

You are working on behalf of the seller of a property.

The seller has filled in their leaseholder deed of certificate and asked their landlord for a landlord’s certificate by email.*

The seller has not received anything back within four weeks.

Suggested action

You proceed as normal. You inform the buyer’s conveyancer that a landlord’s certificate has not been received within four weeks.

You can explain that if the landlord does not provide a valid landlord’s certificate that complies with the requirements of the legislation within four weeks, the landlord will be liable for all remediation costs and will be unable to pass on these costs to leaseholders through a service charge for a relevant defect, which would benefit the buyer.

Read the government’s guidance on mandatory information from landlords

*Email is an acceptable form of notification for the request of the landlord’s certificate, as long as an acknowledgement or receipt of the email is received.

We advise that you give four weeks to receive a response from the point of acknowledgement or receipt before continuing with the transaction.

A landlord’s certificate received after this date can be disregarded unless it is produced for a new relevant defect.

4. Requesting a landlord’s certificate in complex management structures

You are working on behalf of the seller of a property.

The seller has filled in their leaseholder deed of certificate and asked their landlord for a landlord’s certificate, but there is a complex management structure.

The seller is unsure who to email or write to asking for a landlord’s certificate.

Suggested action

Advise your client to find out if they have ever received communications from a party who has identified themselves as the freeholder or landlord.

Advise your client to contact the managing agent to ask them for the details of who the landlord is for the purpose of requesting a landlord’s certificate.

5. Seller requests a landlord’s certificate instead of issuing a leaseholder deed of certificate

You are working on behalf of a potential seller of a property.

The seller does not meet the conditions, so knows without filling out a leaseholder deed of certificate that they are non-qualifying.

Instead of issuing a leaseholder deed of certificate, they write to their landlord to ask for the landlord’s certificate.

What this means

If the seller does not receive the landlord’s certificate within four weeks.

The landlord will be liable for all remediation costs and will be unable to pass on any costs to leaseholders, through a service charge for a relevant defect.

This would benefit the current leaseholder as well as a future leaseholder if the seller does sell the property.

Non-production of a landlord’s certificate does not make the lease qualifying: it just affords the protections up to that point.

If the landlord was to produce a landlord’s certificate at a future point if a relevant defect was found, information about the leaseholder (as of 14 February 2022) would be needed to produce a leaseholder deed of certificate within a four-week window.

That leaseholder deed of certificate would show the leaseholder was non-qualifying.

If the seller does receive the landlord’s certificate within four weeks

The landlord’s certificate will likely state:

“The leaseholder has not provided a leaseholder deed of certificate at the point this certificate was issued. They are assumed not to qualifying for the qualifying lease protections until they demonstrate otherwise.”

The production of a leaseholder deed of certificate will only solidify the position as a non-qualifying leaseholder, so whether produced or not, the lease in non-qualifying.

Developer remediation scheme

6. Developer is signed up to the scheme

You are working on behalf of the buyer of a property.

The mortgage offer comes through saying the developer is signed up to the developer scheme.

What this means

Being part of the developer scheme gives leaseholders added protection.

Regardless of the qualifying status of the leaseholder, the developer scheme means the developer is committed to take responsibility for all necessary work to address life-critical fire safety works in buildings over 11 metres that they have played a role in developing or refurbishing over the last 30 years in England.

Find a list of developers and details of the contract

The seller will have received confirmation (either from their responsible entity or direct from the developer) that the developer has signed the developer remediation contract and is therefore responsible for addressing life-critical fire safety works in the building.

You may want to ask the seller’s solicitor for a copy of this letter of confirmation.

7. Developer takes responsibility for repairs but does not provide a certificate

You are working on behalf of the seller of a property.

A developer has taken responsibility for repairs to the building.

The seller is not a qualifying leaseholder, but has asked for a landlord’s certificate and it has not been returned in four weeks.

What this means

Being part of the developer scheme gives leaseholders added protection.

Regardless of the qualifying status of the leaseholder, the developer scheme means the developer is committed to take responsibility for all necessary work to address life-critical fire safety works in buildings over 11 metres that they have played a role in developing or refurbishing over the last 30 years in England.

Find a list of developers and details of the contract

As a landlord’s certificate has not been produced within four weeks, the landlord will be liable for all remediation costs and will be unable to pass on any costs to leaseholders, which would benefit the buyer.

If you want to include guidance, you could share the government’s guidance on mandatory information from landlords.

You may wish to share evidence that the seller has received confirmation that the developer has signed the developer remediation contract and is therefore responsible for addressing life-critical fire safety works in the building with the buyer’s solicitor to provide them with reassurance.

8. Developer is signed up to the scheme for a B1-rated building

You are working on behalf of a buyer of a property in a building rated B1 on an EWS1 form.

The property does not need remediation work, but leaseholders have received a letter from the building’s developer advising that they have signed up to the government’s developer scheme.

What this means

Your buyer is purchasing a leasehold property that does not need remediation work, but if it did, it would be covered by the developer so they would not be liable for costs for addressing life-critical fire safety works.

This is regardless of whether the leaseholder on 14 February 2022 was qualifying or non-qualifying.

Uncertainty over building height

9. Building height recorded differently on documents

You are working on behalf on the buyer of a property.

You have seen the height of the property of two different documents: the mortgage offer and the EWS1.

It varies by one floor: one document says four storeys, the other five storeys.

Suggested action

Contact the lender and inform them that the height of the building is different in their offer to what it is in the EWS1.

Ask the lender if one of its surveyors has inspected the property to verify the height.

It is possible the building is part of a block with buildings of differencing heights.

The EWS1 could be applicable to buildings within the block that are four and five storeys.

You should contact the seller’s conveyancer to get clarification of the height for the building your buyer is purchasing in.

Remediation of external walls

10. Landlord provides letter confirming it will remediate external walls and not pass on costs

You are working on behalf of a buyer of a property in a building rated B2 on an EWS1 form, indicating works are needed.

You are unsure of the height of the building and whether the leaseholder protections apply.

The landlord (a housing association) has provided the seller a “letter of comfort” on headed paper, confirming it will remediate the external walls without passing on costs to leaseholders.

Suggested action

This should provide the necessary assurance that required works will take place without the leaseholder having to contribute.

If the buyer is obtaining a mortgage, this sort of assurance may be sufficient for the lender and to provide reassurance to your client, although you should:

• check the lender’s instructions or with the lender to understand its specific policy
• obtain the lender’s written confirmation or provide written confirmation of conversations with the lender, and
• establish if any more information is required

This needs to happen before exchange of contracts.

Deceased owner

11. When a property is held in trust

You are working on behalf of a buyer of a property.

The property is currently held by executors in trust, as the previous owner of the property died in January 2022.

The executors have produced a leaseholder deed of certificate showing they are non-qualifying.

Suggested action

You handle this transaction the same way as any other probate transaction.

Make sure the buyer is aware of the non-qualifying status and what this means depending on the remediation status of the building.

For a building that is either remediated or not in need of any work, the leaseholder status is practically inconsequential.

For cladded buildings, you can reassure the buyer that cladding costs are not passed on to leaseholders regardless of qualifying status, because of the government schemes where developers cannot fix cladding-related defects.

Building not covered by developer scheme

12. Non-qualifying leaseholders, where the building is not covered by the developer remediation scheme

You are working on behalf of a seller of a property.

The seller is a non-qualifying leaseholder and the building is not covered as part of the developer remediation scheme.

What this means

Non-cladding related costs can be passed on to a future owner of the property.

Non-qualifying leaseholders are only protected from the costs of historical safety remediation if the building owner is – or is associated with – the developer who is responsible for that defect as at 14 February 2022.

Where this is not the case, property owners may be liable for remediation costs in accordance with the terms of the lease – but the costs passed on cannot be increased to replace money that qualifying leaseholders are protected from paying.