The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023

EXPLANATORY NOTE

(This note is not part of the Regulations)

The Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022 (S.I. 2022/859) and the Building Safety (Leaseholder Protections) (England) Regulations 2022 (S.I. 2022/711) support the leaseholder protection provisions in sections 116 to 125 of, and Schedule 8 to, the Building Safety Act 2022 (“the Act”) and this instrument amends those Regulations.

Regulations 3 to 8 amend the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022.

Regulation 3 inserts into the interpretation regulation a definition of ‘current landlord’ and ‘named manager’, and defines ‘shared ownership lease’ which is the same definition used for certain purposes in the Act.

Regulation 4 adds the Homes and Communities Agency, established by the Housing and Regeneration Act 2008, to the list of interested persons who may apply for a remediation order under section 123 of the Act. And for the purposes of section 124 of the Act it makes the Homes and Communities Agency, and the named manager, RMC and RTM company of a relevant building interested persons who may apply for a remediation contribution order under that section.

Regulations 5, 6 and 7 amend regulations 3, 4 and 5 which make provision for recovery of amounts as between landlords under various paragraphs of Schedule 8 to the Act. Some of the amendments relating to a notice issued by a landlord will not apply in respect of a notice issued before these Regulations come into force.

Regulation 5 amends regulation 3 which is concerned with recovery of amounts from other landlords under paragraph 2 of Schedule 8 to the Act. The changes make it clear that where two or more landlords are responsible landlords their liability is join and several and that to recover the amount a landlord must give a notice to a least one of them. New paragraph (3A) sets out the information to be included in the notice. The recipient of a notice may apply to the Tribunal for an extension of the time limit for appealing. New paragraphs (6A) and (6B) set out the consequences of an appeal by reference to the grounds on which it was brought and whether the outcome was successful.

Regulation 6 amends regulation 4 which is concerned with recovery of amounts from other landlords under paragraph 3 of Schedule 8 to the Act. The amendments similarly change the process for recovering the remediation amount, the information to be included in the relevant notice, and the outcomes of appeal.

Regulation 7 amends regulation 5 which is concerned with recovery of amounts from other landlords under other provisions of Schedule 8 to the Act, with chances to the process for recovery and the outcome of an appeal.

Regulations 5, 6, and 7 also amend regulations 3(5), 4(4) and 5(8) to remove the words ‘that notice’ to make it clear that the appeal is not on the fact of the notice but on the grounds of appeal which are set out in the following paragraph. They also allow named managers to recover funds from other landlords in the same way as an RMC or RTM company and provide for an amount payable under these regulations to be recovered by L as a civil debt.

Regulation 8 amends regulation 6 by adding a new paragraph requiring a landlord, RMC, RTM company or named manager who has received a leaseholder certificate to share it with the landlord who is carrying out the repairs.

Regulations 10 to 13 amend the Building Safety (Leaseholder Protections) (England) Regulations 2022.

Regulation 10 includes a definition of “RMC” which is the same as in the affirmative regulations, substitutes the definition of “current landlord”, and defines “named manager” to align with that in the Building Safety (Leaseholder Protections) ((Information etc.) (England) Regulations 2022.

Regulation 11 amends regulation 6 which is concerned with the landlord’s certificate. It adds a new circumstance in which the current landlord must provide a landlord’s certificate to a leaseholder. It also sets what if any information needs to be included in and evidence has to accompany a landlord’s certificate in certain circumstances. In particular this means that where the landlord accepts that the landlord met the contribution condition and was responsible for a relevant defect (directly or indirectly) the landlord does not have to provide information about group structure or accounts.

Regulation 12 amends regulation 10 which is concerned with the application of service charge restrictions to non-residential leases to make technical changes.

Regulation 13 replaces Schedule 1 to the Building Safety (Leaseholder Protections) (England) Regulations 2022; the substitute schedule includes an amended landlord’s certificate which reflects changes made by these Regulations.

An impact assessment covering the leaseholder protection provisions in both the Act and the regulations made under it (S.I. 2022/711 and S.I. 2022/859), using illustrative examples to demonstrate how the leaseholder protection provisions work in practice, was published on 20 June 2022 and the analysis contained in it reflects the policy achieved by this statutory instrument. The impact assessment along with the explanatory memorandum for these Regulations is available at www.legislation.gov.uk. A copy of both may be inspected at the Department for Levelling Up, Housing and Communities at 2 Marsham Street, London, SW1P 4DF.