Section 113 of the Building Safety Act & the “Provision of Building Safety Information”

The Building Safety Act 2022 (“BSA”) makes several changes to already existing legislation in England and Wales including the proposed insertion of two new sections to the Landlord and Tenant Act 1987 (“LTA 1987”).

Section 113 of the BSA sets out the “Provision of Building Safety Information” and proposes to insert sections 47A and 49A into the LTA 1987; whilst section 113 of the BSA isn’t yet in force, given the Government’s Transition Plan (which was published with the bill back in July 2021) anticipated that the majority of the new obligations in the BSA would be brought into force within 12-18 months from the date of Royal Assent (i.e. by April – October 2023), it is important to take note of the changes which are likely to shortly be in place.

These proposed amendments require, where the building is a premises to which part 4 of the BSA applies:

1. When giving any written demand, it must contain the “relevant building safety information” (section 47A); and
2. the landlord must give the tenant a notice containing the relevant building safety information (section 49A).

Relevant building safety information

The meaning of relevant building safety information is defined under section 49A(5):

“(a)the fact that the premises consist of or include a dwelling in a higher-risk building;

(b)the name of each person listed in subsection (6);

(c)an email address and telephone number through which each person listed in subsection (6) may be contacted;

(d)a postal address in England and Wales at which notices (including notices in proceedings) may be served by the tenant on the principal accountable person for the higher-risk building;

(e)a postal address for the regulator;

(f)such other information as may be prescribed in regulations made by the Secretary of State.”

Relevant persons for the purpose of section 113(6) are the (a) the principal accountable person for the higher-risk building; (b) any special measures manager for the higher-risk building; and (c) the regulator.

When to give the information

For the purpose of the requirement under the proposed new section 47A, this must be given each time a demand is raised.

In respect of the proposed section 49A, consideration should be given to giving notice to all leaseholders once/if the provision comes into force. In respect of incoming leaseholders, the requirement to give the notice pursuant to section 49A(1) can be satisfied by giving the notice to a tenant when they are a prospective tenant.

Consequences for failure to provide

A failure to provide the information, where required, by the proposed section 47A, renders any part of the amount demanded which consists of a service charge or an administration charge (“the relevant amount”) is to be treated for all purposes as not being due from the tenant until such time the landlord gives the relevant building safety information to the tenant.

A failure to provide the information, where required, by the proposed section 49A, renders any rent, service charge or administration charge otherwise due from the tenant to the landlord is to be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord gives the notice to the tenant.

Given the wide-ranging impact of the failure to provide this information, steps should be taken to prepare notices for them to be given once the provisions come into force.

Exclusions

Rent, service charges or administration will not be rendered non-payable by a failure to provide the relevant building safety information where either a FTT Manager is appointed, or a special measures order (within the meaning of Schedule 7 to the BSA) is in force.”

Conclusion

The consequences of failing to comply with the new provisions (once in force) of the LTA 87 regarding the provision of relevant information could therefore be significant.

It is therefore imperative that freeholders, management companies and managing agents, ensure that they take the requisite steps to ensure that they are in a position to comply with those provisions, once they come into force. As a more immediate consideration, it would be wise to consider reviewing and preparing updated demand templates to ensure that this information is contained within them. In addition, it would also be sensible have draft notices to be prepared for giving the notice under s.49A once it comes into force, also incorporating giving the notice into processes for dealing with replies to leaseholder enquiries and registration.

Should you wish to discuss the impact and implications of the Building Safety Act further, please contact us: BuildingSafety@jbleitch.co.uk