RAAC – some considerations for property owners and occupiers
Only a few months ago, it would be rare to know RAAC stood for reinforced autoclaved aerated concrete. However, RAAC has since dominated the news as it has become clear that its use has placed schools and other buildings at risk of collapse.
What is RAAC?
RAAC is an alternative type of concrete, developed in Sweden, and used in the construction of buildings in the UK between the 1950s and 90s. RAAC is particularly prominent in schools, courts and other public sector buildings. However, it was also used in buildings in the private sector.
RAAC is porous and therefore, it is significantly weaker than other forms of concrete.
As a result, the Standing Committee on Structural Safety issued an alert in 2019 stating ‘pre-1980 RAAC planks are now past their expected service life and it is recommended that consideration is given to their replacement’. The Health and Safety Executive has taken a similar approach stating RAAC ‘could have significant safety consequences’ and that it is ‘liable to collapse’.
It is estimated that RAAC planks have a lifespan of only 30 years, which means many of the buildings RAAC was used to construct are now ‘life expired’. It is therefore important for anyone with an interest in a building, that may be affected by RAAC, to be aware of the associated risks.
Health & Safety Liability
It is important for owners and occupants to be aware of their health and safety responsibilities. The Health and Safety at Work Act 1974 imposes an obligation on an employer (whether it is the owner or occupant of a building) to ensure the health and safety of its employees. Furthermore, the Occupiers’ Liability Acts 1957 and 1984 should be considered as they impose an obligation on occupiers to ensure the safety of visitors (invited or not) to their premises.
Ultimately, where responsibility to remediate falls will depend on how the interest in the property is held. Failing to realise or establish who is responsible, may have significant implications.
Where a property is leased, the terms of the lease will determine who is liable to remediate; landlord or tenant.
At a general level, it is unlikely RAAC will be considered an Insured Risk, so responsibility will be determined by the landlord and tenant’s repairing covenants. In most commercial leases of multi-occupied buildings, the landlord is responsible for structural repairs, and therefore the obligation to remediate RAAC will fall to it. However, this does not necessarily mean the landlord will bear the cost of remediation – the lease may make provision for the landlord to recover the costs of repairs through service charge provisions, and this might extend to cover RAAC remediation.
Where the lease does not require the landlord to carry out structural repairs, it is possible that responsibility to remediate RAAC will fall to the tenant under its repairing covenant. If a tenant is bound by this obligation, it is also possible that it will face action from the landlord if it has allowed RAAC to deteriorate. A robust analysis of the lease provisions is warranted but undoubtedly this will impact upon damages for breach of repair claims at lease end (dilapidations claims).
Whether RAAC is present at a property will now warrant extra due diligence before a new lease is taken or a property acquired as the financial consideration may be of potential significance.
Where the property is owned and occupied by the freeholder, responsibility for remediation will fall to it.
Regardless of who is liable to remediate RAAC, it is important for anyone with an interest in property to be aware of other matters that may complicate the remediation process.
One of these is asbestos. Asbestos was used in buildings at a similar time to RAAC and it is therefore possible that asbestos is also present in many buildings with RAAC. This will increase the difficulty of remediation as precautions will need to be taken to ensure asbestos is not disturbed, or that it is adequately dealt with if it is.
Another matter to be considered is that of consents – it is possible planning consent will be required if remediation will significantly alter the existing building, or if the building needs to be demolished and rebuilt. If the tenant is to remediate, it might also need to consider consents under the lease as remediation work might amount to an alteration which would require consent and a licence to alter.
Parallels have been drawn between the RAAC crisis and the ACM Cladding revelations post-Grenfell. In the case of the latter, the government extended the limitation period stated in the Defective Premises Act 1972 (through the Building Safety Act 2022) to 30 years, to allow claims to be brought against developers outside of the original limitation period. It has been questioned whether the government will take a similar approach in relation to RAAC (given most claims against developers will now be time-barred) however, the government’s position remains unclear.
The full implications of RAAC are still unknown, and the specifics will depend on individual circumstances. If you are concerned about RAAC in a property, an initial step would be to commission a survey by suitably qualified professionals to ascertain the extent of any problem and thereafter, if RAAC is present, seek advice as to your responsibilities and options.