Persons of Interest (Part 1): “Accountable Persons”

Recent legislation, including the Building Safety Act 2022 (“BSA 2022”) and various secondary legislation, has brought with it various new obligations for certain parties with interests in higher-risk buildings.

In this latest blog series, our building safety team practically summarise the obligations and responsibilities of Accountable and Responsible Persons/Actors and will provide information as to how to identify which party responsibilities falls on in respect of higher-risk buildings.

Part 1. Accountable Persons

Identifying the Accountable Persons

The Accountable Person (“AP”) for a higher-risk building under Section 72 BSA 2022 is either:

1. A person holding legal estate in possession in any part of the common parts (“the Estate Owner”) (i.e., a Building owner, Landlord, Leaseholders owning a share of the freehold) or;
2. A person under a relevant repairing obligation in relation to any part of the common parts (i.e., a Landlord, Leaseholders, Management Company).

‘Common parts’: the structure and exterior (except the parts included in a demise of a single dwelling or of a premises to be occupied for the purposes of a business) or any part of the building provided for the use, benefit and enjoyment of the residents of more than one residential unit (corridors/lobbies/staircases).

‘Relevant repairing obligation’: a person is under a ‘relevant repairing obligation’ in relation to anything if the person is required under a lease or by virtue of an enactment, to repair or maintain that thing.

(Section 72(6) BSA 2022).

Management Companies / RTMs / RMCs?

A named Management Company is likely to hold repairing obligations in respect of the common parts of the building pursuant to the leases and is therefore likely to qualify as an AP.

Under Section 72(2) BSA 2022, the Estate Owner is not an AP if:

1. Each long lease of which the estate owner is lessor provides that a particular person not holding a legal estate in the buildings is under a relevant repairing obligation in relation to all of the relevant common parts or;
2. All repairing obligations relating to the relevant common parts which would otherwise be obligations of the estate owner are functions of an RTM company.

Therefore, if a third party (i.e., a Management Company / RMC) are responsible for repairing all of the common parts of the building, the Estate Owner) will not be an AP.

Further, if an RTM company is in existence for the building and they hold all of the relevant repairing obligations, the Estate Owner will not be an AP.

Managing Agents?

A Managing Agent appointed on behalf of the Landlord, RMC or RTM is unlikely to automatically qualify as an AP as whilst they may hold repairing obligations in respect of the common parts pursuant to the terms of a management agreement entered into with an instructing party, this obligation does not arise from the lease or by virtue of an enactment as required by the BSA 2022.

A Managing Agent may be responsible for undertaking / actioning / managing the obligations as an AP pursuant to the terms of a management agreement however they cannot be held directly liable for a breach of duty arising out of the BSA 2022 in regard to the obligations of an AP.

There is no provision within the BSA 2022 which allows an AP to delegate their obligations and liabilities.

The BSA 2022 provides that the First-tier Tribunal (“the Tribunal”) will have jurisdiction to determine who the PAP is. An application can be made by anyone with an interest in the building.

Obligations of an Accountable Person

The AP will have to take all reasonable steps to provide the following key duties:

• Assess all building safety risks in an occupied higher-risk building at regular intervals and where there is a concern that the current assessment is no longer valid.
• Prevent a building safety risk from materialising by putting measures in place.
• Reduce the severity of an incident if one happens.
• Arrange for a completion certificate to be issued prior to a relevant residential unit being occupied upon the following works being carried out:

1. The construction of a higher-risk building
2. The creation of additional residential units in such a building

• Works to a building that cause it to become a higher-risk building
• Adhere to the mandatory reporting requirements under Section 87 BSA 2022.
• Keep prescribed information and documents about the higher-risk building under Section 88 BSA 2022.
• Adhere to regulations relating to the provision of information under Sections 89, 90 and 92 BSA 2022.
• Cooperate and coordinate with every other AP for the building under Section 109 BSA 2022.
• Transfer building safety information to any incoming AP and notify the Building Safety Regulator (“BSR”) if there’s a change to an AP.

If there are multiple APs for a building, all efforts should be taken to work together and share all safety information about the building.

Repercussions of breaches of duties

The BSR will initially work with APs to resolve any potential non-compliance however if the matter cannot be resolved, a failure to comply with the duties of an AP could lead to a criminal prosecution resulting in imprisonment or a fine.

Where there has been a serious failure, or a failure on two or more occasions by an AP, the Tribunal will have the ability to appoint a Special Measures Manager (“SSM”) by way of a Special Measures Order (“SMO”) who will carry out the obligations of all APs for the building.

To find our more about the role of the Accountable Person, contact us: BuildingSafety@jbleitch.co.uk