Increasing tribunal applications in 2025

‘Seismic’ is an apt word for the impact on the construction industry to date of the Building Safety Act 2022 (the Act), enacted to improve fire safety and provide rights for residents of high-risk buildings (HRBs) following the Grenfell tragedy. Yet it is set to intensify further in 2025.

We are seeing an exponential increase in retainers from leaseholders to obtain Building Safety Certificates from the designated Building Safety Regulator (BSR), or to secure government funding via remediation grants to replace unsafe cladding or remedy safety defects.

Also rapidly growing in number are applications for Remediation Orders or Remediation Contribution Orders to remedy historic building safety defects from the First-tier Tribunal, under Sections 123 and 124 of the Act.

Many leaseholders are being prompted to act from the frustration of being unable to sell their property until building defects or unsafe cladding are made good – encouraged by the first wave of tribunal rulings, as well as the shortfall between government grants and total remediation costs.

Empowered by the Act’s mandate of transparency and enhanced safety measures, leaseholders are also seeking professional advice to ensure HRBs meet safety standards.

Increased construction responsibility

The Act introduced the concept of an “accountable person” responsible for the safety of HBRs (defined as buildings over 18 meters tall or consisting of at least seven storeys with at least two residential units). The Act defines an Accountable Person for an HRB as:

•  The owner of the freehold or leasehold interest in any part of the common parts of an HRB

•  Any party obligated to repair and maintain any part of the common parts by virtue of a lease or statutory obligation

Accountable Persons cannot offload liabilities, even when a professional has been appointed to repair or maintain an HRB and may face penalties for non-compliance with BSR duties due to underperformance.

Applications for Remediation Orders or Remediation Contribution Orders can be made against persons who were landlords at the qualifying time, the building's developer, or any person "associated" with these parties.

Increased work for technical consultants

As non-compliance with the Act can result in significant liabilities, we are seeing developers, freeholders, leaseholders, and managing agents increasingly seeking advice from property and construction professionals to ensure compliance with the Act’s rules. Top of the agenda are how to integrate safety measures into design and construction processes, and advice on retrospective remedial works.

Architects, surveyors and fire safety consultants can all expect to have burgeoning workloads in 2025 as they are called upon to provide technical advice along with detailed schedules specifying relevant defects and remedial works required.

By understanding and adhering to these requirements, those in the real estate and construction sectors can help their clients steer the complexities of the Building Safety Act 2022, ensuring compliance and mitigating potential liabilities.

Defending leaseholder claims

Construction firms proactively getting expert technical advice put themselves in a strong position to demonstrate adherence with the Act.

However, the increasing number of tribunal applications means growing numbers of developers and freeholders can expect to find themselves summoned to a tribunal. The inevitable resulting bottlenecks are likely to cause delays, leading to uncertainty, stress and ongoing costs over a sustained period, especially if there is dispute as to where the respective responsibilities fall between the developer and landlord.

Tribunal rulings have provided us with a good understanding of how The Act will be interpreted. It may therefore be more prudent to seek to reach a pragmatic agreement with leaseholders to enable all parties to minimise costs and move forward. Real estate litigators have a key role to play in helping all parties achieve realistic resolutions, rather than remaining trapped in the necessary consequences of Grenfell.