Making Industry Pay ' Proposed Amendments To Building Safety Bill

Published date01 March 2022
Subject MatterReal Estate and Construction, Real Estate, Landlord & Tenant - Leases
Law FirmHerbert Smith Freehills
AuthorMr Jonathan Turnbull, Matthew White and Kate Wilson

The Building Safety Bill is a huge piece of draft legislation, currently making its way through the House of Lords and subject to further scrutiny at committee stage this week. We have previously blogged on the contents of the bill (here and here), and the sweeping changes that it envisages with regards to the building safety regime. However, the government have now announced some further amendments to the bill in a press release entitled "Government to protect leaseholders with new laws to make industry pay for building safety".

These proposals follow on from the government's ongoing discussions with the residential development industry to try and resolve the issue of covering the cost of remediating unsafe cladding and associated risks. The intention is to seek a resolution without the need to resort to legislative action, but if no common ground can be found, these proposed amendments would allow the government to take the action it feels is necessary to ensure the removal of faulty cladding and/or to require developers to pay for the costs of any such remediation, whilst also protecting leaseholders from having to cover these costs. The proposed amendments are numerous, but we have highlighted a few of the most material suggestions below:

Remediation Orders and Remediation Contribution Orders

Proposed new clauses in the Bill would allow the Secretary of State to make provision for Remediation Orders to be served on landlords to remedy defects in a building for which they are responsible for the repair and maintenance. Defects are classified as something that arises as a result of works done to the building that caused a building safety risk and were carried out before completion of construction (if completion occurred in the period of 30 years before commencement of this provision) or, by or on behalf of a landlord or management company after completion and within that 30 year period. These Orders would apply to residential buildings of at least 11 metres in height and that have at least five storeys, meaning the obligation to remediate such defects would apply to a wider class of building than those classified as "higher-risk" under the existing draft Bill.

A related concept of a Remediation Contribution Order would also require specified persons that are associated with landlords of such buildings to make payments in order to meet the costs incurred in remedying relevant defects. To be associated with a landlord, an individual must have been a...

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