We have written previously on the recently published Housing (Cladding Remediation) (Scotland) Bill and the powers that it would give to Scottish Ministers. The Bill has a focus on residential properties and its stated intention is to remove the risk from unsafe cladding on people's homes.
However, the proposed definition of building within the Bill is such that some commercial premises may fall within its scope.
In this blog we set out some of the key provisions that commercial premise owners should be aware of.
Commercial premises that may be impacted:
A commercial property would fall within the scope of the Bill if all the following applied:
• It is a flatted building this means a Tenement or any other subdivided building. It could therefore include multi-let commercial buildings such as an office block, but;
• It must contain at least one flat that is used, or intended to be used as a residential dwelling.
• It has an external wall cladding system,
• It stands 11 metres or more above the ground, and
• It was constructed or underwent development, at any time between 1 June 1992 and 1 June 2022.
The Bill also gives Scottish Ministers the power to expand on this definition which could result in more commercial buildings being impacted in the future.
So, what does the Bill mean for impacted commercial property owners:
The Bill introduces the concept of "single-building assessments." A single-building assessment will report on any risk to human life created or exacerbated by a building's external wall cladding system and any work required to eliminate or mitigate this risk.
At present, responsibility for carrying out the Single Building Assessment appears to fall upon Scottish Ministers or nominated persons, with the Bill giving Ministers the power to arrange assessments.
However, there is the risk that this could become the personal responsibility of owners. Owners risk committing an offence if they obstruct or fail to assist with the carrying out of a single building assessment.
Additionally, property owners could be impacted by the power given to Ministers to require the evacuation of the Premises. Scottish Ministers can require an evacuation if in the process of carrying out a single-building assessment it is uncovered that there is a substantial risk to occupants' lives due to the cladding system of the building. An individual who has failed to comply with the evacuation requirement would be committing an offence liable on summary conviction.
At the moment, there is no deadline for assessments to be carried out. But, once a single-building assessment has been completed, a building should be entered onto a new Cladding Assurance Register.
Penalties for failure to comply
The Bill gives Scottish Ministers several powers and creates a number of offences.
Powers include the power to require information for the register, the power to arrange a single-building assessment where it is not possible or difficult to obtain owner consent, and the power to carry out any required work identified by a single-building assessment.
The new offences to be created include an offence of providing false or misleading information for the register and an offence of failing to comply with a requirement to provide information for a single-building assessment and the register.
It remains to be seen how the Bill will evolve as it makes its way through the Scottish Parliament and what impact, if any, it will have on the commercial property landscape. Much will depend on just how many commercial properties fall within its scope and how disruptive single-building assessments turn out to be on the running of commercial premises.
As always for any guidance on your responsibilities as a commercial property owner, please do get in touch with our real estate litigation team or your usual brodies representative.
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