The Building Safety Act 2022 (BSA) has significant implications for leaseholders in high-rise (aka ‘relevant’) buildings. The Act is extensive and complex, and we cannot advise leaseholders on its implications. Importantly, the BSA contains leaseholder protections that can prevent your landlord from charging you for fixing historic safety defects, including cladding costs, in your building.

As a minimum we recommend that you read this page in full and visit these three webpages to familiarise yourself with the terms ‘leaseholder protections’, ‘qualifying lease’, ‘leaseholder deed of certificate’ and ‘landlord certificate’:

In order to gain the leaseholder financial protections provided by the BSA leaseholders need to establish whether they meet the BSA’s ‘qualifying lease’ criteria, and then be able to prove this by way of a leaseholder ‘deed of certificate’.

You do not have to wait to be formally asked by your landlord to provide a leaseholder ‘deed of certificate’ - you may wish to provide them with a copy now (‘voluntarily’) in order to establish your legal entitlements under the BSA. You should keep the original deed of certificate as it will be required by your solicitor when you sell your flat.

We recommend leaseholders seek legal advice if they are uncertain as to their status and obligations.

Financial protections to leaseholders provided by the Building Safety Act

Leaseholder protections in the BSA vary according to factors including the value of your flat, whether it is located in London, whether you are a 'qualifying’ or ‘non-qualifying’ leaseholder and whether the landlord meets the ‘contribution level’. The Leasehold Advisory Service provides a good summary of leaseholder protections on their website here, as does this article by law firm Wedlake Bell.

For ease of reference we have cut & pasted the full ‘qualifying lease’ criteria from the .GOV website at the bottom of this page. Whether your Canary Riverside flat is a ‘qualifying lease’ may depend on your own personal circumstances - if you own property in addition to your Canary Riverside flat please check the .GOV website.

Leaseholder and Landlord Certificates

The Government guidance on Leaseholder and Landlord Certificates can be found here.

Leaseholder deed of certificate - guidance copied from the LEASE website:

A leaseholder deed of certificate shows your landlord whether you qualify for leaseholder protections provided by the Building Safety Act 2022. These protections can prevent your landlord from charging you for fixing historic safety defects in your building. If you do not show your landlord a deed of certificate when you have been asked by them to do so you will not benefit from the protections for qualifying leases. The certificate can be passed on to any buyer of your property and they will inherit your status as either holding a qualifying lease or not.

Your landlord can issue a notice requesting you to complete a leaseholder deed of certificate at any time. They must do so within 5 days if:

  • they become aware that you are selling the property

  • there is a relevant defect in the building, such as a fire safety or other structural issue arising from the construction or conversion of the building

You can also submit a leaseholder deed of certificate voluntarily, ie, without waiting for the landlord to serve a notice requesting one. Many qualifying leaseholders take this route (ie, they do not wait to be asked by the landlord), seeing no reason to delay establishing their legal entitlement.

If your landlord sends you a request for a leaseholder deed of certificate you have 8 weeks to complete and return it, plus an additional 4 weeks if you request it. If you fail to return a copy of your leaseholder deed of certificate in time you may lose your protections under the Building Safety Act 2022 (the presumption will be that you do not hold a qualifying lease and are, therefore, not entitled to certain leaseholder protections. This means you may have to contribute to remediation costs when you could have avoided it). You can find out more and download a deed of certificate template on GOV.UK. Retain your original deed of certificate as you will need to provide this to your solicitor when you sell your flat.

[A ChatGPT-generated step-by-step guide to obtaining a leaseholder certificate can be found here (please do not rely solely on this guide) and further guidance here. The Government’s FAQ page on leaseholder protections can be found here.]

Landlord certificate - guidance copied from the LEASE website:

Your landlord must provide you with a landlord’s certificate:

  • when they want to pass on the cost of remediation work to you through the service charge

  • within 4 weeks of receiving your request for one

  • within 4 weeks of receiving a notification from you that are selling your property

  • within 4 weeks of becoming aware of a relevant defect not covered by a previous landlord’s certificate

  • within 4 weeks of becoming aware of a new leaseholder deed of certificate which contains information that was not in a previous landlord’s certificate

If your landlord has not provided a landlord’s certificate, they will not be able to pass on costs to you for repairing your building’s historical safety defects, such as cladding. Until they provide the certificate, they are presumed to be responsible for the relevant defects and to have met the net worth threshold that prevents them from charging you for this type of work through the service charge.

Explanation of ‘qualifying leaseholder’ and examples (copied from this .GOV website)

Summary

1. This guidance clarifies the extent (or location) to which the leaseholder protections apply. It also explains what is meant by qualifying date and qualifying lease.

What the legislation means

2. A qualifying lease is a lease to which the leaseholder protections apply.

3. A lease is qualifying if it meets all of the following criteria:

a. it is a long lease (more than 21 years in length) of a single dwelling within a building of above 11 metres or at least five storeys

b. you are responsible for paying a service charge

c. the lease was granted before the 14 February 2022

d. on 14 February 2022:

  • the dwelling was your only or main home, meaning it was the home where you spent most of your time, or

  • you did not own more than 3 dwellings in the United Kingdom in total - please note, dwellings outside of England will not be covered by the leaseholder protections.

4. The leaseholder protections apply to leaseholders in a relevant building in England only. The leaseholder protections do not apply to leasehold properties located in Wales, Scotland or Northern Ireland.

5. The leaseholder and landlord tests apply from 14 February 2022 (“the qualifying date”). This is the date the draft leaseholder protections were first published, and this date has been chosen to ensure that the system cannot be gamed now the operation of the protections is known.

6. If a dwelling was let under two or more leases on 14 February 2022, a lease which is superior to any other lease is not a qualifying lease (a superior lease is the lease between the leaseholder’s building owner and the freeholder (although there may be one or more layers of leases in between). The definition of ‘building owner’ can be found in What are my building owner’s legal obligations?

7. The protections which apply to the property based on its status on 14 February 2022 are automatically transferred to future buyers of the lease. This means that if the property was eligible for the protections on 14 February 2022 and is sold subsequently, the buyer also benefits from those protections (and vice versa).

8. We have amended the Building Safety Act 2022 to ensure that the statutory protections for leaseholders continue where qualifying leases are extended, varied or replaced by an entirely new lease. This means that the statutory protections limiting or preventing remediation costs from being passed onto qualifying leaseholders will continue to apply as if the new lease were a qualifying lease.

9. The amendment is retrospective, so that it applies to leases extended, varied or replaced since 14 February 2022. This means that those leaseholders who have, for example, extended their leases or are in the middle of the process, are covered by the protections.

10. This amendment came into effect on 26 December, 2 months after Royal Assent of the Levelling Up and Regeneration Act 2023.

11. The relevant provision can be found in section 243 of the Levelling Up and Regeneration Act 2023.

How will this affect you, the leaseholder?

12. If you own a lease within a relevant building and your lease meets the qualifying criteria (as outlined above), you qualify for the leaseholder protections.

13. You should review the Mandatory information required from leaseholders and building owners to determine what you must provide to demonstrate your lease’s qualifying status.

14. For more information about the certificate and evidence your building owner will be required to provide to demonstrate whether they can pass on costs to qualifying leaseholders, please see Mandatory information required from leaseholders and building owners.

Examples

Example 1:

  • You own a long lease which has been granted before 14 February 2022 within a relevant building in England.

  • This is your only or main home.

  • You qualify for the leaseholder protections.

Example 2:

  • You own 4 flats in England within relevant buildings.

  • You do not own any other property. You live (and lived on 14 February 2022) in one of these flats.

  • Only the flat lease you live in qualifies for the leaseholder protections.

  • The other flat leases do not qualify as you own more than three properties in the United Kingdom.

Example 3:

  • You own 2 flats within relevant buildings in England and 2 houses in Wales. You live (and lived on 14 February 2022) in one of the flats.

  • Only the flat lease you live in qualifies for the leaseholder protections.

  • The other flat lease does not qualify for the leaseholder protections as you own more than three properties in the United Kingdom.

Example 4:

  • You own 2 flats within relevant buildings in England and 2 houses in Wales.

  • You live in one of the houses in Wales.

  • Neither flat lease qualifies for the leaseholder protections, as you own more than 3 properties in the United Kingdom in total, and neither of the flats was your main home on 14 February 2022.

Example 5:

  • You own 2 flats within relevant buildings in England and 1 flat in Scotland.

  • You live in a flat in France.

  • Both flat leases in England qualify for the leaseholder protections as you do not own more than three properties in the United Kingdom.

Example 6:

  • You own a flat within a relevant building which was your main home on 14 February 2022.

  • Your flat lease qualifies for the leaseholder protections. You sell your flat to a new owner.

  • The leaseholder protections automatically transfer to the future buyer.

  • It does not matter whether the new buyer lives in the property or how many other properties they own, as the lease’s status was determined on 14 February 2022.

Example 7:

  • You own a flat within a relevant building which was not your main home on 14 February 2022, and you own more than 3 properties in total.

  • Your lease does not qualify for the leaseholder protections.

  • You sell your flat.

  • Although the future buyer is intending for the flat to be their only and main home, the lease remains non-qualifying as the lease’s qualifying status was determined on 14 February 2022.

Example 8:

  • You jointly own (and owned on 14 February 2022) 3 flats in England within relevant buildings. You do not own any other property.

  • You are considered to own 3 properties for the purpose of the protections.

  • All three flat leases qualify for the leaseholder protections.

Example 9:

  • You own (and owned on 14 February 2022) 3 flats in England within relevant buildings, one of which is furnished holiday rental.

  • You also own one commercial premise.

  • You are considered to own 3 properties for the purpose of the protections.

  • All 3 flat leases qualify for the leaseholder protections.

Non-qualifying leaseholders

Non-qualifying leaseholders are only protected from the costs of historical safety remediation if your building owner is - or is associated with - the developer who is responsible for that defect. Where this is not the case, you will be liable for remediation costs as per the terms of your lease - but the costs passed on to you cannot be increased to replace money that qualifying leaseholders are protected from paying.

Costs that cannot be passed on:

Any historical safety remediation costs where the developer who built or refurbished the building is - or is associated with - the building owner.