Who is a "landlord" under the Building Safety Act 2022?

In this blog we explain the changes brought about by the Building Safety Act 2022 (BSA) for those parties involved with residential blocks of flats in England with defective cladding, specifically looking at those "landlords" falling within the scope of the BSA as a result of The Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022 859 (Regulation 859).

This key piece of secondary legislation, amongst other things, seeks to shift liability from individual leaseholders in relation to some services a landlord is expected to provide (such as 'waking watches' etc.), leaving liability for these charges to be determinable between the different Regulation 859 entities.

Who is a Regulation 859 landlord?

There are three types of landlord (which can include management companies) defined within Regulation 859:

1. a landlord who has a freehold interest in the building or a landlord who has or is treated as having a leasehold interest in respect of 90% or more of the storeys in the building will be a "Type 1" landlord.

2. a landlord who has or is treated as having a leasehold interest in respect of more than 40% but less than 90% of the storeys in the building will be a "Type 2" landlord.

3. a landlord who has or is treated as having a leasehold interest in respect of 40% or less of the storeys in the building will be a "Type 3" landlord.

A landlord with a leasehold interest in part only of a storey in the building, will be treated as having an interest in respect of the whole storey.

There will also be implications for building owners connected to any developer that installed the defective cladding system. A building owner will be considered connected with the developer if, as at 14 February 2022, they were one of the following: 1) the beneficiary of the trust 2) a partner in the partnership 3) a director of the company or 4) in control of the responsible company at any time in the 5 years prior to 14 February 2022.

If you are a freeholder, landlord or management company having to deal with issues caused by defective cladding or, you have any concerns or questions about the impact the BSA may have on you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies contact.

For more of our industry insights on the impact of the BSA right across the built environment, please visit our Building and Fire Safety hub here.