You’ll have hopefully seen the CA’s Guidance document which covers the Buildings Safety Act and Building Safety (Leaseholder Protections) Regulations (England) which we launched back at the tail end of April.
We believe this is a strong starting point for conveyancing firms in understanding exactly what is at play here, not least because this is such a fluid area of work, and open to a somewhat different interpretation depending on a number of factors.
For example, depending on what country you are in the experience will be somewhat different. The Welsh Government has not adopted much of the Building Safety Act (the Act) at all, specifically Part Five which means they do not require the Leaseholder Deed of Certificate to establish whether the leaseholder qualifies for the protections afforded them under the Act.
As you might know, the Act stipulates that a Leaseholder Deed of Certificate is required to prove the qualification of the leasehold interest as at the 14th February 2022.
This removes something of a headache which is affecting properties/stakeholders in England who do require this Deed of Certificate, and might well beg the question why, if it isn’t required in Wales, it is in England? Perhaps Wales has fewer impacted properties, and those that are, will be either Government- or developer-funded in terms of potential remediation. However, that is not particularly clear at the moment.
As we know, conveyancing firms are – perhaps understandably – concerned about the application of the Act, and even with our CA Guidance, we acknowledge that some firms may not want to work on cases for fear of their potential liability, should they get it wrong.
In the same vein, firms were not being helped by Part 1 of the UK Finance Handbook which was saying the Act applied to all leasehold flats and was asking conveyancers to collate documents which did not exist for any flats in buildings under 11 metres.
However, this is an industry built on collaboration, feedback and communication, and the changes to Part 1 have corrected and clarified this position.
There is further positive news on the way for leaseholders and that is in the form of the Renter’s Reform Bill – albeit just at the time of writing it was almost nailed on that its Second Reading wouldn’t take place before the Summer Recess as initially expected, but in the Autumn.
However, when it does move through its Parliamentary stages it should eventually deliver the removal of Long Leases from Assured Shorthold Tenancies (ASTs), meaning those leases which still have escalating ground rent payments within them, do not run the risk of becoming ASTs, which would otherwise mean the landlord could technically take possession of the property if there were ground rent arrears.
They could seek possession via forfeiture but that process takes much longer, as it gives greater protection to both the owner and any lender. Whereas the notice to quit that can be given to a tenant, under an AST is as little as two weeks for just two months of arrears. Removing long leases from ASTs, ensures this shouldn’t happen, and is a positive to be celebrated when, or perhaps if, the Renters Reform Bill does finally make its way through Parliament. Fingers crossed, one small step towards a positive home-moving experience.
Beth Rudolf is Director of Delivery at the Conveyancing Association (CA)
