Building Safety – building owners must register higher-risk buildings by 30 September or face criminal sanctions

The Grenfell Tower tragedy in 2017 prompted the Government to bring in the Building Safety Act 2022. The driving force behind the Act is to improve the safety of all buildings, especially high-rise residential buildings. One of the most pressing requirements introduced by these reforms is for those who own or are responsible for repairing the common parts of certain buildings (which have a residential component) to register the building with the Building Safety Regulator by 30 September 2023. Failure to do so is a criminal offence.

 

Which buildings must be registered?

Under the Act, occupied “higher-risk” buildings must be registered. A higher-risk building:

• is at least 18 metres in height, or
• has at least seven storeys,

and, in each case, is a building in England containing at least two residential units.

Certain types of buildings are potentially excluded: care homes, hospitals, secure residential institutions, hotels and military barracks, including buildings with living accommodation provided by the Ministry of Defence. Whether they are excluded will, in certain cases, depend on whether they are exclusively used for a particular purpose or are mixed-use, whether they comprise independent sections and the access arrangements for those sections.

 

Who is responsible for registering the building?

The “principal accountable person” for the building (or someone authorised by it) must ensure that the building is registered before it is occupied (or by 30 September 2023, where it is already occupied before that date).

Who is an accountable person?

The duty holder responsible for a higher-risk building is called an “accountable person” (AP). An AP will, by default, be any person with a freehold or leasehold interest in the common parts of the higher-risk building who has not let them out. However, it will not be the AP if:

• each long lease entered into by that person makes provision for a third party (without a legal interest in the building) to repair all the common parts (for example, a management company) (in which case, the AP will be that third party); or
• the repairing obligations in relation to the common parts are the responsibility of a right to manage company (in which case, the right to manage company will be the AP); or
• that person's own landlord or superior landlord has retained a relevant repairing obligation (i.e., by virtue of the lease or by statute) in relation to the common parts or part thereof (in which case, the landlord or superior landlord (as the case may be) will be the AP for those parts).

Note that the common parts of a higher-risk building mean the structure and exterior except to the extent they are included in a demise of a single dwelling or of business premises and any part of the building which is provided for the use of more than one residential tenant.

An AP can be a natural person or an organisation, including a commonhold association.

It is not sufficient if a third party's repairing obligation arises as a result of contract rather than lease or statute – therefore Manco operators under property management agreements will not be APs as they do not have any land interest in the common parts and their repairing obligation is not a 'relevant repairing obligation' in line with the wording of the Act (as the obligation does not arise under a lease or statute).

If there is only one AP, they will also be the “principal accountable person” (see below) who is responsible for registering the building with the Building Safety Regulator.

What if there is more than one accountable person?

Where there is more than one AP for any given building, then a “principal accountable person” (PAP) should be appointed. A PAP is defined as the person who holds a legal estate in possession of the structure and exterior of the building or who has a relevant repairing obligation in relation to the common parts.

It may not be easy to work out who the AP or PAP are. It is possible to apply to the First-tier Tribunal to determine who the AP and PAP are, but time is running short to do this before the registration deadline.

 

When must the registration be made?

For existing occupied buildings: by 30 September 2023. Otherwise, registration must occur before a higher-risk building is occupied.

 

How do I make the registration?

Registration is made online on the Health and Safety Executive’s site here. The site sets out the information that the PAP must submit with the application to register.

Third parties such as a management company will not ordinarily be capable of becoming an AP/PAP (and therefore, becoming responsible for registration) unless they operate under a lease that requires the management company to repair/maintain the common parts. However, government guidance does make clear that the AP/PAP can authorise someone to register the building on its behalf. This authorisation must be made in writing. It is possible that an AP/PAP may choose to delegate other aspects of its building safety obligations also, although the statutory liability will always remain with the AP/PAP.

 

What happens if I fail to meet the registration deadline?

Failure to register a building before it is occupied is a criminal offence which could lead to a fine or imprisonment. Where the party that fails to meet the registration deadline is a body corporate, any director, manager or officer of that body corporate who allows (either expressly or tacitly) the failure to occur or causes the failure to occur due to their negligence, may also be held responsible. As such, directors and officers may have concurrent liability for health and safety offences with the body corporate. The maximum penalty for an individual convicted of health and safety offences is two years’ imprisonment, an unlimited fine, or both. The court may also make a directors disqualification order prohibiting the person from acting as a company director if they are unfit to act due to their conduct.

 

What if something changes after I make the registration?

PAPs are required to update the registered information provided to the Building Safety Regulator within 14 days of becoming aware of a change, for example, where a more recent building control certificate becomes available. The legislation does not provide any specific updating requirements after the sale or purchase of a building. However, there is a general requirement for the PAP to update the register within 14 days of becoming aware of a change. Thus, if the PAP changed as a result of a disposal of a registered building, the incoming PAP would need to notify the regulator within 14 days of the change of PAP and of any other changes if, for example, any of the APs also changed.

 

What happens next?

Registration of the higher-risk building is only the start of the journey for PAPs and APs - within 28 days of registration, the PAP must submit key building information to the Building Safety Regulator. However, the Act introduces many other obligations relating to building safety that will continue through the life of the building, for example, each AP must assess and manage building safety risks on an ongoing basis, prepare and maintain a “safety case report” for the building (which must be updated when certain changes occur), implement a system for reporting safety occurrences and engage with residents about safety issues.