How Does The Building Safety Act Impact On Wills And Probate?

• Published date: 11 March 2024
• Law Firm: Thomson Snell & Passmore
• Author: Lisa de Silva and Sarah Crane

Lisa de Silva and Sarah Crane recently wrote a piece investigating this topic for the Law Society's PS Magazine.

The Building Safety Act 2022 (the act) came into force last summer. The act attempts to tackle some of the safety issues in high-rise buildings, following the Grenfell disaster in 2017. Its ambit is wider than simply cladding - it determines who will bear the cost of remedying certain construction defects and sets limits on what costs landlords can recover from leaseholders.

Qualifying leases

Protection under the act is determined by whether the lease fulfilled certain criteria on 14 February 2022, which would make it a 'qualifying lease'. Section 119 sets out the criteria:

• It is the lease of a dwelling in a building which is at least five storeys or 11 metres tall and which contains at least one other dwelling
• The lease was granted prior to 14 February 2022 and was longer than 21 years when granted
• Service charge is payable under the lease
• The building is not tenant-owned, enfranchised, commonhold or the subject of previous compulsory purchase
• It is the tenant's (or one of the tenants') sole or principal home, or the tenant owns no more than two other dwellings in the United Kingdom.

If the lease is a qualifying lease, it will benefit from significant service charge protections - for instance, if the landlord is part of a wealthy enough group, or if the lease is 'lower value' (less than '175,000, or '325,000 in London, as of 14 February 2022), that landlord will not be able to recover the remediation costs for building safety defects.

If a lease was granted before 14 February 2022 and is non-qualifying, the value of the property may be reduced due to the uncertainty of the remedial costs that could be passed on through service charges. In addition, lenders may be less willing to lend on a non-qualifying lease. So far, surveyors have been reluctant to quantify the difference in value, as they have no guidance from the Royal Institution of Chartered Surveyors on how to do so.

The act was brought in to protect tenants, but it's clear that the position of fiduciaries has not been properly considered. Personal representatives of estates are now being faced with a whole host of issues.

Can a personal representative sign a leaseholder deed of certificate for a property forming part of an estate?

While the answer to this would logically be yes, there is no mention in the act itself or in the deed of certificate on how personal representatives should...