Written evidence submitted by Giles Peaker [BSB 298]
I am a solicitor and partner at Anthony Gold Solicitors based in Southwark and Lambeth. I am a specialist in housing law and have a good and widespread reputation in the field. I have previously given evidence to the Select Committee on leasehold reform and on the Homelessness Reduction Bill (as was), and assisted Karen Buck MP with her private members Bill – the Homes (Fitness for Human Habitation Act) 2018 - from its genesis. I have extensive experience in acting for leaseholders in building defect cases.
I make these brief comments with a particular view to the Bill’s impact on leaseholders of flats in higher-risk buildings, and the Bill’s interaction, or lack of it, with other legislation that offers leaseholders some means of accountability and redress.
Does the draft Bill establish an appropriate scope for the new regulatory system?
The Draft Building Safety Bill is not sufficiently clear about when the accountable person’s duties under section 73 - Steps to prevent a major incident - are engaged, specifically what amounts to “a significant number of deaths” or “a significant number of people” injured. This should not be subject to interpretation.
Is the Government right to propose a new Building Safety Charge? Does the bill introduce sufficient protections to ensure that leaseholders do not face excessive charges and that their funds are properly managed?
The proposed amendments to Landlord and Tenant Act 1985 (LTA 85) at section 88 amount to a major change to the existing service charge provisions. In particular:
These provisions override any specific provisions in leases that may limit the scope of costs recovery by freeholders/head leaseholders, for example by not including improvements in addition to repairs and maintenance. They represent a major and wholesale re-writing of pre-existing leases.
Similarly, the Bill provides a mechanism for overriding a leaseholder’s right to quiet enjoyment, by order of the County Court. While there is a logical basis for this, it places leaseholders at risk of repeated and intrusive inspections, and represents a significant re-writing of leaseholders’ rights.
While any payments from grants or insurance are, quite rightly, to be set off so as to reduce the leaseholder’s liability, there is no address in the Bill to potential remedies for leaseholders.
The Bill does not contain any distinction between leaseholder liability for currently existing build defects and safety issues arising in the future. As it stands, the Bill would place the entire liability for the costs of remedying currently unsafe buildings on leaseholders.
It is notable, in that regard, that the Bill does not contain any address to potential remedies for leaseholders against defective construction of the higher-risk building. While the Building Act 1984 is proposed to be amended to extend the two years time limit for prosecution for contravention of building regulations to ten years (s.42), there is no address to the limitation period of section 1 Defective Premises Act 1972. This is in realty, the sole provision that leaseholders can rely upon in seeking to bring a claim against the builder, developer or initial freeholder for the costs of failing to build to building regulations. The limitation period is a strict 6 years from completion of the dwelling, unless the defendant can be shown to have actively and fraudulently concealed the defects.
It would have been simple for the Bill to either extend the limitation period for section 1 Defective Premises Act, or to provide that limitation ran from the claimant’s discovery of a defect that was not reasonably evident.
This is not done, with the effect that the Bill places all costs onto leaseholders but does not address leaseholders’ all too common lack of any means of redress against those responsible for the defects.
How well does the Bill, as drafted, meet the Government’s own policy intentions?
Aside from the inherently unfair impact on leaseholders, addressed above, the Bill presents serious practical problems if enacted in its current form.
As the committee is aware, the ongoing crisis around EWS1 inspections and forms, which has left hundreds of thousands of flats unsaleable and unmortgageable, is in large part due to a shortage of qualified and insured inspectors. There is no reason to believe that for some considerable period after the enaction of the Bill, there would not be a similar problem. This would mean that any building potentially at risk of being a ‘higher-risk’ building would be blighted for what could be a period of years, with leaseholders unable to sell or remortgage, and facing substantial potential costs for safety works.