An LFRA Update: New Regulations introduce further amendments to the BSA

On 7 October 2024 the Government made the Leasehold and Freehold Reform Act 2024 (Commencement No 1) Regulations 2024 (SI/2024/1018) (the "Regulations").

The Regulations bring into force specific sections of the Leasehold and Freehold Reform Act 2024 ("LFRA") which amend part of the Building Safety Act ("BSA"). Our previous article which discusses the LFRA and several other amendments to the BSA that came into immediate effect can be found here.

Further amendments to the BSA came into force on 31 October 2024. They are found in Part 8 of LFRA and are summarised as follows:

1. s114: amendment to s120 BSA (remediation of relevant defects);
2. s115: amendment to s123 BSA (remediation orders); and
3. s116: additional subsection in s124 BSA (remediation contribution orders).

Section 114 LFRA:

Section 114 (LFRA) amends the meaning of "relevant defect" contained within s120 BSA. This definition applies for the purposes of: remediation costs under qualifying leases (s122 BSA), remediation orders (s123 BSA), remediation contribution orders (s124 BSA) and remediation costs under qualifying leases (schedule 8 to the BSA).

Section 114 LFRA provides for a new definition of "relevant steps" within s120 BSA, to be taken in relation to relevant defects with the purpose of:

1. preventing or reducing the likelihood of a fire or collapse of the building occurring as a result of the relevant defect;
2. reducing the severity of any such incident; or
3. preventing or reducing harm to people in or about the building that could result from such an incident.

Section 114 also introduces "relevant measures" as a replacement for "building safety risk" and "relevant risk" in Schedule 8 BSA (the section dealing with remediation costs under qualifying leases). A "relevant measure" is defined as one which is taken to remedy a relevant defect, or a relevant step taken in relation to the relevant defect, thus providing a further practical impact of the new 'relevant steps' provision set out above.

The FTT’s ruling in Triathlon Homes v Stratford Village Partnership classified waking watch relief and temporary fire alarms as ‘relevant measures’ under s120 BSA. This decision is currently being appealed; however, the amendments introduced by s114 LFRA likely clarify that such temporary measures will be considered 'relevant measures'. 

Section 115 LFRA:

Under the previous drafting of s123 of the BSA the FTT could make a Remediation Order to require a landlord to remedy relevant defects within a specified time. The new drafting introduced by s115 LFRA allows the FTT to require a landlord to do one or both of the following, within the specified time:

1. remedy specified relevant defects in a relevant building; and/or
2. take specified relevant steps (as introduced by s114 LFRA) in relation to the specified relevant defects.

This therefore builds upon the provisions contained within s114, giving 'relevant steps' a further statutory footing.

Section 116 LFRA:

This makes amendments to s124 of the BSA to provide for additional costs to be included in a Remediation Contribution Order ("RCO"). The costs incurred in taking 'relevant steps' (as introduced by s114 LFRA) in relation to a relevant defect can now be included in the scope of an RCO. Moreover, on obtaining an RCO, the applicant will be able to include the costs incurred through obtaining the expert reports in relation to the building. The introduction of s116 LFRA also allows for temporary accommodation costs incurred in connection with the decant from a relevant building to be recovered; specifically in cases where the reason for the residents moving out is due to either the building posing an imminent risk to life or personal safety, or where the remedial works will cause disruption.

Comment:

The concept of "relevant steps" being introduced by LFRA in relation to "relevant defects" within s120 BSA encourages a proactive approach to building safety. Not only is there a requirement to address existing defects, but there is now an additional focus on anticipating and mitigating potential risks. 

Although these amendments seem positive, there is a risk that ambiguities in the definition of ‘relevant steps’ could lead to further disputes in the FTT. For example, it is unclear what ‘preventing or reducing harm to people in or around the building’ might include. This could lead to inconsistency and misinterpretations by the FTT, the cost of which ultimately falls to the leaseholders who are currently unable to recover the legal costs of making an application for a Remediation Order or Remediation Contribution Order. 

If you require advice in respect of any Building Safety matters, Howard Kennedy LLP have a dedicated Building Safety Group (Building Safety Act 2022). Contact Mark Pritchard or Bhavini Patel for further information