A Guide to Landlord Certificates under the Building Safety Act 2022 

What is a relevant building?

A relevant building is a building which is at least 11 metres high or is a minimum of five storeys and in either case contains at least two residential units. The measurement must be taken from ground floor level (disregarding any basement/floors below this level) to the floor of the top storey, unless the top storey is exclusively used for housing plant and machinery, in which case this floor may also be disregarded. 

What is a relevant defect?

A relevant defect is a defect which causes a fire safety risk or risk of collapse. The defect must have been created during the 30 year period ending 28 June 2022, but please note that works to remedy a relevant defect carried out after this date will also be covered by the legislation.

What is a landlord’s certificate?  

A landlord’s certificate provides a leaseholder with information about the building and the landlord and in particular whether any relevant defects exist and if so, whether the leaseholder will have to contribute towards the costs of remediation through service charges or whether the landlord will be responsible for some or all of these costs.

The position is established through a series of tests or criteria, which have to be applied in order to complete the certificate. In particular, detailed information is required to establish the net worth of the landlord (and its group if a corporate entity or spouse/civil partner if an individual) as at 14 February 2022 and/or to establish whether the landlord is responsible for a relevant defect. It may also be necessary to provide documentary evidence of the position as stated in the certificate.

When is a landlord’s certificate required?  

A landlord’s certificate must be provided when a landlord makes a service charge demand in respect of the cost of remedying a relevant defect or within four weeks of one of the following trigger events:

• Becoming aware of a relevant defect not covered by a previous landlord’s certificate

• Receiving notification that a lease of a dwelling within the building is to be sold

• Being requested by a leaseholder 

• Becoming aware of a new leaseholder deed of certificate containing information not included in a previous landlord’s certificate

What if the landlord does not provide the landlord’s certificate in time, or at all?  

A landlord will not be able to recover the costs of remedying a relevant defect from the leaseholder(s). 

Are there any other deadlines?

The requirements of the legislation are detailed and complex, but some of the other deadlines landlords need to be aware of include:

• Within five days of becoming aware of a sale of a flat within the building or a relevant defect, the landlord must give notice which complies with the regulations requiring that the leaseholder(s) provide a leaseholder deed of certificate

• Within one week of receiving a leaseholder deed of certificate, the landlord must provide a copy of the certificate to any resident management company, right-to-manage company or named manager in relation to the building

What is a Leaseholder Deed of Certificate? 

A leaseholder deed of certificate provides the landlord with information about a flat lease and the lease owner as at 14 February 2022 in order to establish whether or not the lease qualifies for protection under the legislation (i.e. whether the current leaseholder will be required to contribute to the costs of remedying any relevant defect as part of their service charge contribution and if so, any cap or limit applicable to the contribution). 

When is a Leaseholder Deed of Certificate required? 

A leaseholder is only required to provide a leaseholder deed of certificate once the landlord has made a request in accordance with the regulations, although in practical terms, leaseholders often produce the certificate during a sale at the request of the buyer/ lender before the landlord makes a request. 

What if the leaseholder does not provide a Leaseholder Deed of Certificate?  

Where a landlord has taken all specified steps to obtain a leaseholder deed of certificate, but the leaseholder fails to provide a leaseholder deed of certificate within the deadline or at all, the lease will lose any protection for which it might otherwise have qualified.

Conclusion

The consequences of non-compliance can expose both landlords and leaseholders to additional and potentially significant costs. It can also delay transactions as the market (and in particular mortgage lenders), continue to come to terms with the requirements.  It is therefore important for both landlords and leaseholders to understand their status and obligations, not least because a landlord, in particular, has little time to prepare once a trigger event occurs. It is also worth noting that a landlord does not have to wait for a trigger event to occur and a leaseholder does not have to wait for a request before preparing their certificates.

Marjorie Batten, Associate, Property Disputes and Zoe McGovern , Solicitor, Property Disputes at Ashfords LLP

This document is intended to be for general information purposes only, may not cover every aspect of the topic with which it deals, and should not be relied on as legal advice or as an alternative to taking legal advice. English law is subject to change and the information shared may not reflect the latest legal developments. You should always seek appropriate legal advice before taking, or refraining from taking, any action based on the information contained in this document. Ashfords disclaims all liability for any loss, howsoever caused, arising directly or indirectly from reliance on the information contained within this document.

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