The Building Safety Act 2022 introduced a wide ranging and highly technical framework aimed at improving building safety and clarifying responsibility for the remediation of certain defects. For landlords and building owners, the act has particular significance in relation to the recovery of service charges and the information that must be provided to leaseholders where relevant defects are identified.
One area that continues to generate questions is the requirement to provide a landlord’s certificate. This certificate plays a central role in determining whether, and to what extent, a landlord can recover remediation costs from leaseholders. Our guide provides a detailed overview of the certificate itself and how it operates in practice. Building on that guidance, this article answers some of the most frequently asked questions about landlord certificates, explaining when they are needed, whether any exemptions exist, and the consequences of providing invalid certificates or not serving one at all.
The Building Safety Act 2022 was introduced to deal with safety issues and concerns in buildings, especially in relation to relevant buildings. It contains reforms to improve safety and construction standards in the UK and to ensure consistency in the management and accountability of buildings and construction going forward.
A relevant building is a building which is at least 11 metres high or is a minimum of five storeys and in either case contains at least two residential units. The measurement must be taken from ground floor level (disregarding any basement/floors below this level) to the floor of the top storey (unless the top storey is exclusively used for housing plant and machinery, in which case this floor may also be disregarded).
Please note, an additional regime also applies if the building is at least 18 metres high or is a minimum of seven storeys (a ‘higher-risk building’) and we refer to our higher-risk buildings guidance in this respect here.
The BSA 2002 and subordinate regulations place an obligation on a landlord of a relevant buildings to provide a landlord’s certificate in relation to a relevant defect in a relevant building.
A landlord’s certificate gives a leaseholder information about the landlord, the building and whether any relevant defect exists. It specifies how much the leaseholder may need to contribute towards the cost of remediating a relevant defect through the service charge in the lease. In some situations, the landlord may be responsible for all of the costs.
The landlord’s certificate contains a series of tests and/or criteria, which must be applied in order to complete the certificate. This includes detailed information to establish the landlord’s net worth (and any group companies or spouse/civil partner – where applicable) as at 14 February 2022. The certificate will also establish whether the landlord is responsible for a relevant defect.
A relevant defect is a defect which causes a fire safety risk or risk of collapse. The defect must have been created during the 30-year period ending 28 June 2022, but will also include works to remedy a relevant defect carried out after this date..
There are certain ‘triggers’ which mean that a landlord’s certificate will need to be completed and served within tight deadlines.
A landlord’s certificate must be provided when a landlord makes a service charge demand to remedy a relevant defect or within four weeks of one of the following trigger events:
The landlord becoming aware of a relevant defect not covered by a previous landlord’s certificate
The landlord receiving notification that a lease of a dwelling within the building is to be sold
A leaseholder requesting a landlord’s certificate
A landlord becoming aware of a new leaseholder deed of certificate containing information not previously included in a landlord’s certificate
Within five days of becoming aware of a sale of a flat within the building or a relevant defect, the landlord must give notice which complies with the regulations requiring that the leaseholder(s) provide a leaseholder deed of certificate.
Within one week of receiving a leaseholder deed of certificate, the landlord must provide a copy of the certificate to any resident management company, right-to-manage company or named manager in relation to the building.
The landlord’s certificate will need to be served on the leaseholder of the dwelling as stated in the lease and land registry title. There are no guidelines as to what constitutes good service but it is advisable to serve a hard copy of the landlord’s certificate by post to the property address and a copy by email, if email service has been consented to.
The landlord’s certificate needs to be served within four weeks of the trigger events listed in FAQ 5 above.
The landlord’s certificate will also need to be served on any resident management company, right-to-manage company or named manager in relation to the building within one week of completion.
The regulations introduce some exemptions for certain landlords, such as registered providers of social housing or local authorities but only if certain criteria is met.
There is a prescribed form of landlord’s certificate which can be located on the government website. It is not recommended to deviate from this form as it could render the form invalid.
The current landlord of the property needs to provide the information and sign the certificate. If there are managers associated with the building, their input may be required but it is the landlord who needs to complete and serve the landlord’s certificate.
If the current landlord is unable to provide the information required in the landlord’s certificate, they should contact other people who may be able to furnish this information such as any managers of the property and previous owners/landlords. The landlord may require the information to be provided within three weeks of the request.
The landlord will not be able to recover the costs of remedying a relevant defect from a leaseholder if a landlord’s certificate is not provided when required, is late or invalid.
The Building Safety Act and associated regulations are a detailed and complex scheme of rules relating to the recovery of service charges and advice should be sought by landlords on a case-by-case basis – please contact Zoe McGovern or Sian Gibbon for further information.
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