Guidance

Guidance on the use of remediation orders

Guidance for local authorities and fire and rescue services on the use remediation orders, a Building Safety Act 2022 enforcement power.

From:
Department for Levelling Up, Housing and Communities
Published
16 October 2023

Applies to England

DLUHC’s guidance on the use of remediation orders provides a framework for any person considering making an application for a remediation order.

Remediation orders were introduced under the Building Safety Act 2022 to ensure that essential remediation work required to remedy relevant defects takes place without delay. Regulatory bodies and leaseholders can apply to the First-tier Tribunal for a remediation order to compel a relevant landlord to remedy relevant defects by a specified time.

The guidance describes the key stages in the remediation order process including information-gathering, pre-action correspondence, completing the application form and the Tribunal process.

1. Introduction

1.1 Purpose of this guidance:

Under the Building Safety Act 2022, interested persons can apply to the First-tier Tribunal for a remediation order. Interested persons include local authorities, fire and rescue authorities, the Building Safety Regulator, the Secretary of State for Levelling Up, Housing and Communities, the Homes and Communities Agency (Homes England) and any person with a legal or equitable interest in the relevant building or any part of it, including leaseholders. This document provides a framework for any person considering making an application for a remediation order.

Building owners are responsible for complying with their legal obligations to keep their buildings safe. The government expects local authorities and fire and rescue authorities to take enforcement action against building owners who are stalling on remediation, including applying for remediation orders where appropriate. In some situations, leaseholders may wish to make their own application for a remediation order.

A remediation order is made by the Property Chamber of the First-tier Tribunal to require a relevant landlord to remedy specified building safety defects. A relevant landlord is the company or individual who has an obligation under a lease of the building, or by virtue of an enactment, to repair and maintain those parts of the building in need of remediation. See section 2.2.2 for more information about relevant landlords.

Remediation orders can be made in respect of self-contained residential buildings that are at least 11 metres high or have at least five storeys and contain at least one relevant defect. A relevant defect is defined in the Building Safety Act 2022 as a defect that has arisen from anything that has been done (or not done), or anything used (or not used), in connection with relevant works, and causes a building safety risk. See section 2.2.3 for more information about relevant defects.

This document does not constitute legal advice. Interested persons should seek their own legal and expert advice when considering making an application for a remediation order and should not rely on this document.

1.2 Local authority and fire and rescue authority enforcement powers in residential buildings

In addition to their powers under the Building Safety Act 2022, local authorities and fire and rescue authorities have enforcement powers under the Housing Act 2004 and the Regulatory Reform (Fire Safety) Order 2005, respectively, that can be used where safety requirements in residential buildings are not met. It is not expected that remediation orders are used in every enforcement situation. Local authorities and fire and rescue authorities should determine which piece of legislation is most appropriate on a case-by-case basis.

The government encourages local authorities and fire and rescue authorities to work together to ensure they have an effective partnership working protocol and/or memorandum of understanding in place. Regular communication and collaboration should take place at both a strategic and operational level.

Having an effective partnership working protocol in place will enable local authorities and fire and rescue authorities to share information proactively, prioritise resources and coordinate enforcement activity under their respective regimes, on buildings that may require enforcement action. It will also allow local authorities and fire and rescue authorities to review and agree on policy and procedural matters regarding enforcement.

The government encourages local authorities and fire and rescue authorities to make use of their new power to bring remediation orders against building owners who are failing to progress remediation on their unsafe buildings.

It will depend on the details of the building as to whether the local authority or fire and rescue authority, or both, are best placed to take enforcement action. Local arrangements and protocols will vary. Both authorities should consider, ideally in conversation with one another, which legislative regime and enforcement action route is likely to be the most appropriate, taking into account the individual circumstances of each case. When taking enforcement action, regulatory bodies should make sure they are following the Regulators’ Code - a framework for how regulators should engage with those they regulate.

See Chapter 4 for other useful documents on effective partnership working.

2. Guide to remediation orders

This chapter sets out key information about remediation orders including key definitions, pre-action correspondence, the application process, and the Tribunal process.

Remediation orders were introduced to ensure that essential remediation work to remedy relevant defects takes place where landlords are not fulfilling their legal obligations to make their buildings safe.

A remediation order allows an interested person (see 2.1.1) to apply to the Property Chamber of the First-tier Tribunal for an order requiring a relevant landlord of a relevant building to remedy specified relevant defects by a specified time.

If a relevant landlord has failed to remedy a relevant defect, or has stalled remedial works, a remediation order can be used to compel them to fix the relevant defects within a specified time.

  2.1 Key definitions 

This section sets out key definitions relating to remediation orders. 

2.1.1 Interested person 

The Building Safety Act 2022 and accompanying regulations specify the parties who can apply for a remediation order, known as interested persons. These are:

2.1.2 Relevant landlord 

A remediation order is an order made against a relevant landlord (Building Safety Act, section 123). A relevant landlord is defined as a landlord under a lease of the building or any part of it who is required, under the lease or by virtue of enactment, to repair or maintain anything relating to a relevant defect. This is commonly known as a repairing obligation.

The relevant landlord will not necessarily be the freeholder. Examples of a relevant landlord include a freeholder, superior landlord (e.g., head lessee) or a management company that is party to the lease. The relevant landlord is the party with the repairing obligation for that building.

In buildings with complex ownership structures, there might be multiple entities with repairing obligations for different parts of the building. See section 2.2.2 for more information about the relevant landlord.

2.1.3 Relevant building 

Remediation orders can only be made in respect of relevant buildings (Building Safety Act 2022, section 117). The definition of relevant building contains three elements that must be taken together for the relevant building status to be established. A relevant building is defined as a building in England that:

  • is a self-contained building or a self-contained part of a building
  • contains at least 2 dwellings
  • is at least 11 metres high or has at least 5 storeys

As set out in section 117(4), a building is self-contained if it is structurally detached. Section 117(5) sets out that a part of a building may be ‘self-contained’ if:

  • the part constitutes a vertical division of the building
  • the part could be redeveloped independently of the rest of the building
  • the relevant services provided for occupiers in that part are provided independently, or could be provided without significant interruption to services used by occupiers in the rest of the building if works are carried out. Relevant services means services provided by means of pipes, cables or other fixed installations.

Section 118(2) sets out that the height of the building is to be measured from ground level to the floor of the top storey. Any storeys below ground level are to be disregarded, and mezzanine floors are only counted as storeys if their internal floor area is at least half of the largest storey in the building above ground level.

2.1.4 Relevant defect 

A relevant defect is defined in section 120 of the Building Safety Act as a defect that:

  • has arisen from anything that has been done (or not done), or anything used (or not used), in connection with relevant works
  • causes a building safety risk. A building safety risk is a risk to the safety of people in or about the building arising from the spread of fire, or the collapse of the building or any part of it
  • has been created in the relevant period, defined as the 30 years prior to the leaseholder protections coming into force (28 June 1992 to 27 June 2022)
  • relates to at least one of the following types of works (which are referred to as ‘relevant works’):
    • the construction or conversion of the building, if the construction was completed in the relevant period;
    • works undertaken or commissioned by or on behalf of a relevant landlord or management company, if the works were completed in the relevant period, or;
    • works undertaken after the end of the relevant period to remedy a relevant defect.

Where work has been done after the relevant period, and that work is faulty, resulting in the need for further work, then this would also be considered as relevant works.

So long as the above criteria are met, examples of relevant defects could include, but are not limited to:

  • unsafe cladding systems
  • flammable balconies and other external attachments
  • lack of compartmentation between flats
  • defective building foundations

Defects that have arisen in connection with the provision of professional services are also included in the definition of relevant defects according to section 120(4). This could include, for example, if an architect or building designer specified inappropriate use of flammable materials and the contractor followed those designs.

2.2 Gathering information to support a remediation order case 

This section sets out the key areas where supporting information is likely to be required for a remediation order case. 

It is the applicant’s responsibility to gather information and build a case for a remediation order application. The information in this document does not constitute legal advice. Where potential applicants are unsure about the evidence gathering requirements and/or process, they should seek their own legal advice.

When presenting their case to the First-tier Tribunal, applicants need to show that:

  • the building is a relevant building (see 2.1.3 and 2.2.1)
  • the respondent (the person against whom the remediation order is made) to the order is a relevant landlord (see 2.1.2 and 2.2.2)
  • there exists at least one relevant defect in the building (see 2.1.4 and 2.2.3)

The First-tier Tribunal may also need to be presented with evidence to determine:

  • the works required to remedy the relevant defect(s) in question
  • the timescale for doing so

Local authorities and fire and rescue authorities may wish to consider whether they already hold any information that could be used in support of their application for a remediation order, or if they can use any of their other statutory powers to obtain this information if they do not already hold it. Evidence can also be gathered as part of the remediation order process. 

The following sections set out the evidence required to support a remediation order application.

2.2.1 Relevant building

The information required to show that a building is a relevant building will depend on the case. Whether the building is a relevant building will usually be a matter of fact and, in many cases, is unlikely to be controversial or disputed by the respondent. Potential applicants should be able to confirm how many storeys are in the building, and that it has at least two dwellings, by conducting a visual inspection.

Documentation that may provide appropriate evidence that the building meets the requirements includes, but is not limited to, photographs of the building showing the number of storeys, a Land Registry title plan, documents relating to planning applications, a fire risk assessment, or a fire risk appraisal of external walls (FRAEW).

2.2.2 Relevant landlord 

A relevant landlord is defined as a landlord who has an obligation to repair or maintain the building. This is commonly known as a repairing obligation. 

Leases of flats in the building should set out where the repairing obligation lies. For example, the obligation could lie with the freeholder, head lessee, or management company. However, this may not be the complete answer and there may be other agreements, or documents, relating to the building which will also need to be reviewed to check the position. The identity of the current party will also need to be confirmed, and in some circumstances the repairing obligation may rest with a number of parties, and all of these will need to be identified.

Documentation such as Land Registry title registers or the landlord’s certificate may also be appropriate to support the position that the landlord is a relevant landlord. 

Under the Building Safety (Leaseholder Protections) (England) Regulations 2022, a landlord must provide a certificate to a leaseholder in a series of instances, including where they want to pass on part of the cost of remediation to leaseholders. The certificate must contain information about the current landlord under the lease, at the time the certificate was provided, and any work undertaken on relevant defects since 28 June 2017. The information will need to be checked to confirm it is accurate and up to date.

2.2.3 Relevant defect

The types of evidence required to show that the defect is a relevant defect will depend on the case.

Potential applicants may need technical advice to establish what evidence will be required to prove that the building has at least one relevant defect.

At the initial application stage, applicants must be able to show that there exists at least one relevant defect in the relevant building and provide details of this within the BSA1 form. The BSA1 form is the form that is submitted to the First-tier Tribunal to apply for a remediation order.

Documentation such as a surveyor’s report or other technical reports, a fire risk assessment, a FRAEW, or the contents of a landlord’s certificate may be appropriate to evidence the relevant defect. For example, a surveyor’s report describing the condition of the building, together with the surveyor’s opinion on whether this amounts to a relevant defect, may be appropriate evidence to support an application.

You can also use notices or reports issued by local authorities or fire and rescue authorities under the Housing Act 2004 and the Regulatory Reform (Fire Safety) Order 2005. It will ultimately be at the First-tier Tribunal’s discretion what evidence, from the information provided, they consider when making their decision.

Whilst applicants only need to identify at least one relevant defect at the application stage, by the date of the final Tribunal hearing, the First-Tier Tribunal will require detailed evidence of the specified relevant defect(s) to support the Tribunal in deciding whether to make an order, and the contents of that order, requiring those specified relevant defects to be remediated by a specified time.

In circumstances where, at initial application stage, the existence of some relevant defects may be known but the full extent of relevant defects may not be, the applicant could consider proposing in their application form (see Chapter 2.4) that establishing a full list of relevant defects and remedial work required is factored into the Tribunal process (see Chapter 2.5).

2.3 Pre-action correspondence

This section sets out information about what may be included in pre-action correspondence. Pre-action correspondence is the communication exchanged between the parties before an application is made to the First-tier Tribunal. It is an expected part of the pre-action process that a letter before claim is sent to the respondent before the applicant sends their remediation order application to the First-tier Tribunal. The respondent may choose to respond to the letter before claim.

A letter before claim has multiple purposes:

  • it notifies the respondent about the potential claim
  • it may seek action to be taken by the respondent
  • it may share and / or it may request relevant documents
  • it may result in the issues between the parties being narrowed, which should shorten the procedure before the Tribunal and save both parties costs
  • it may propose the parties consider alternative dispute resolution which, if successful, may avoid the need to go to the Tribunal, and / or
  • it can set a clear timetable for the respondent to respond, with the provision that if the respondent does not provide a response, the potential applicant may issue proceedings without further notice

The respondent may choose to respond to the letter before claim and may agree with the applicant’s statements. For example, they may agree that they are the relevant landlord, and / or may be prepared to agree the extent of the relevant defects, and this agreement could be used in support of any application, to show these matters are not in dispute between the parties.

The response to the letter before claim is likely to determine the potential applicant’s next steps. The next steps in the process will depend on the details of the case.

Pre-action correspondence is beneficial for various reasons. It offers a possibility for parties to resolve the case or narrow the issues in dispute without the need for litigation, which should ultimately be a last resort. Applicants may also use pre-action correspondence to establish certain facts by seeking out or sharing documents.

It should be noted that the contents of the pre-action correspondence will differ depending on the circumstances of the case and the strategy being adopted by the applicant.

Applicants should seek their own legal advice about the content and strategy for pre-action correspondence.

2.4 The remediation order application

Depending on the outcome of the pre-action correspondence, the applicant may decide that a remediation order application to the First-Tier Tribunal is required. This section sets out the next steps in the remediation order application process, once the pre-application process is complete.

The Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022 make clear there are four formal requirements that a remediation order application must include and will be requested in the BSA1 application form. The application for the remediation order must:

  • state it is an application under section 123 of the Building Safety Act
  • identify the building to which the application relates
  • identify the defects to the building for which a remediation order is sought
  • identify the relevant landlord which the applicant considers is responsible for repairing or maintaining anything relating to the relevant defects

Evidence supporting an application for a remediation order should show that the criteria set out above are met.

There are three parts to applying for a remediation order, two of which are optional and/or at the discretion of the First-Tier Tribunal:

  • completing the BSA1 application form (see 2.4.1). This step is required.
  • submitting a bundle of documents (see 2.4.2). This step is optional unless requested by the First-tier Tribunal.
  • submitting a Statement of Case (see 2.4.3). This step is optional unless requested by the First-tier Tribunal.

2.4.1 BSA1 application form

The BSA1 application form needs to be submitted to the First-tier Tribunal to begin the remediation order process. The form will need to be submitted to the Tribunal Regional Office that is responsible for the area in which the relevant building is located. Applicants can find the addresses of Tribunal Regional Offices in the Annex of the BSA1 application form.

The BSA1 form asks for the following information:

  • details of the applicant
  • the address of the subject property (i.e., the relevant building to which the application relates)
  • a brief description of the relevant building and the applicant’s connection with the property (i.e., the identity of the applicant, who must be an interested person)
  • details of the relevant landlord (including name, address, and contact details)
  • defects to the building for which a remediation order is sought (at least one relevant defect will need to be specified)
  • reasons for the application (e.g., the issues in dispute)
  • details of the order sought (i.e., what it is that the applicant wants the respondent to do)
  • whether there are any other existing applications involving the same landlord or property mentioned in the application
  • whether the applicant would be content with a paper determination if the Tribunal thinks it appropriate (meaning that your application is dealt with entirely on the basis of written representations, without the need for parties to attend a hearing and make oral representations)
  • availability (e.g., any dates the applicant will not be available for, or should be avoided for the convenience of any witnesses or experts that may be called upon)
  • whether there are any requirements required for the applicant or persons attending the hearing
  • a statement of truth (e.g., applicants must sign that they believe the facts stated in the form are true)

Much of the above may have been set out and/or shared as part of the pre-action correspondence process, specifically information showing that the case is eligible for a remediation order as the application is against a relevant landlord in respect of a relevant building with at least one relevant defect.

Applicants may consider whether there are any third parties that may be able to provide additional information to support their case. Third parties could include current or former leaseholders.

2.4.2 Submitting a ‘bundle’

Following the receipt of the BSA1 application, the applicant may be asked by the First-tier Tribunal to provide a number of documents, which are referred to as a ‘bundle’. The bundle will consist of documents that will be used to support the case for a remediation order. The Tribunal will inform the applicant as to which documents are required. The types of documents requested by the Tribunal will depend on the details of the case but may include title documents, a sample lease and any commissioned reports which identify the relevant defects.

It should be noted that, if the applicant sends key documents with their BSA1 application, then this step may not be required. The types of documents requested will depend on the details of the case.

2.4.3 Statement of Case

An applicant, whilst not obliged to, may wish to send a Statement of Case alongside the BSA1 form. A Statement of Case consists of a document, or multiple documents, that set out the facts of an applicant’s case. It enables the applicant to provide additional detail to their case.

A Statement of Case would typically include:

  • details about how the relevant criteria for a remediation order have been met (e.g., that there is a relevant building, the respondent is the relevant landlord, and there exists at least one relevant defect)
  • brief details of the response from the respondent at pre-action stage (if any)
  • why a remediation order application has been necessary
  • additional evidence relating to relevant defects, remedial works, and the specified time to complete the works

If a Statement of Case is not issued alongside the BSA1 form, then the First-tier Tribunal may request that a Statement of Case is lodged by the applicant during the Tribunal process.

2.5 The Tribunal process

This section sets out the stages that an applicant may expect to follow, once the First-tier Tribunal has received the remediation order application and considered the case.

Applicants should seek their own legal advice during the Tribunal process.

The First-tier Tribunal has wide powers as to the management of the Tribunal process. However, the remediation order process may involve the following indicative stages:

  • if the applicant has not done so already, directions (instructions issued by the Tribunal which bind both parties) for the applicant to produce a Statement of Case
  • directions for the respondent to produce a Statement of Case in response to the application (see 2.5.1 below)
  • a case management hearing (see 2.5.2)
  • a final hearing (see 2.5.3) that will take place before a remediation order is made, unless the parties have indicated and/or agreed that they will be content with a paper determination and the First-tier Tribunal thinks it appropriate

The timescale of the Tribunal process will depend on the case and will be presided over by a Tribunal Judge. In some cases, it may be that multiple case management hearings are required before a final hearing takes place.

2.5.1 Respondent’s Statement of Case

As set out in 2.4.3, the applicant can choose to provide a Statement of Case alongside the BSA1 form at the application stage or the Tribunal may direct the applicant to provide one as part of the Tribunal process.

Following receipt of the applicant’s Statement of Case, the First-tier Tribunal may exercise its case management powers during the Tribunal process and direct the respondent to provide their own Statement of Case that addresses the following:

  • any grounds of opposition in relation to the application
  • if they believe the qualifying criteria are not met (e.g., if the landlord is not a relevant landlord, the building is not a relevant building or the defect in question is not a relevant defect)
  • if they believe there are any relevant defects that do require remediation, and their reasons for not remediating those defects
  • whether they believe the scope of the relevant defects should be wider or more narrow, and / or
  • whether they agree with the specified period for the remedial works to be undertaken

It is expected that the First-Tier Tribunal will hold a case management hearing at a reasonable period after the Statement of Case has been submitted, if the respondent has been directed to complete one.

2.5.2 Case management hearings

A case management hearing is where the Tribunal Judge decides the next steps in the process. The Tribunal Judge will make directions (i.e., instructions to the relevant parties on how they are to prepare the case) setting out how the case will progress and what actions the parties are required to take and when. The Tribunal may give a direction at any time, including a direction amending, suspending, or setting aside an earlier direction.

The number of case management hearings and directions issued by the Tribunal Judge will differ depending on the details of the case. It may be that only one case management hearing is required. For more complex cases, multiple case management hearings may be required.

The case management hearing is likely to consist of the following stages:

  • the Tribunal Judge will listen to oral submissions from both parties and identify the issues in dispute
  • where appropriate, the Tribunal Judge will inform both parties about the availability of alternative dispute resolution procedures. If the alternative dispute resolution is compatible with the overriding objective, and the parties wish to proceed with this route, the First-tier Tribunal may seek to facilitate the use of this procedure
  • a procedural timetable is laid out setting out the directions that the parties must follow

The procedural timetable may include all or some of the following directions:

  • the parties to carry out a reasonable search for documents and disclose copies to the other party. These are usually documents which are relevant to the issues in the application and include not only documents which each party intends to rely on, but also documents that may adversely affect their case. Disclosure of documents is therefore not limited to documents which are helpful to a party’s case. Applicants should note that electronic and third-party communications may also be disclosable.
  • experts may be appointed by the Tribunal to give evidence in relation to the relevant defects, the scope of remediation works required and the timescales (it will depend on the particular case and what, if any, expert evidence will be permitted). For the Tribunal to make a sufficiently clear and precise order, they will need information about the works required to remedy the relevant defect. The works required will be set out by the Tribunal in the remediation order and will be case dependent. By the date of the final hearing, the Tribunal will require evidence as to the works required to remedy the relevant defects, although they may not require the applicant to propose a detailed schedule of works. Types of evidence needed to show the works required to remedy the relevant defect will also differ depending on the case.
  • a timetable for exchange of witness statements.

It should be noted that the First-tier Tribunal has the following powers under The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013:

  • Rule 20 sets out that the First-tier Tribunal can order any person to produce any documents in that particular person’s possession or control which relate to any issue in the proceedings
  • Rule 6 sets out that the Tribunal can permit or require a party or another person to provide or produce documents, information or submissions to the Tribunal and/or a party
  • under Rule 21, the Tribunal can inspect the land, property or premises which is the subject of the application, providing that it obtains all appropriate consents to its request for entry

It is at the First-tier Tribunal’s discretion to exercise the above powers and this decision will depend on the specifics of each case.

2.5.3 Final hearing before a decision is made

At the final hearing, the Tribunal Judge will review the evidence and make a decision. Subject to certain exceptions, the Tribunal must hold a hearing before making a decision that brings proceedings to a close.

The First-tier Tribunal may make a decision without a hearing if either or all parties involved agree, or if the Tribunal gives notice to the parties involved and no party objects to the proceeding. See Rule 31 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 for more information about decisions with or without a hearing.

During the final hearing, each party will present and summarise their case. The applicant will need to set out why a remediation order is required and the terms of the order it seeks. The respondent is likely to set out why it opposes the order sought. It may be that witnesses will be required to give oral evidence at the hearing (this will normally be during the case management hearing).

As set out in Rule 33(1) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, subject to some exceptions, all hearings must be held in public. See Rule 33(1) for information about the exceptions.

The final hearing may include the following events:

  • the applicant or their representative may begin the hearing by summarising the questions the Tribunal has to decide on
  • the applicant’s witnesses may be called in turn to give evidence on oath or affirmation:
    • usually, each witness is asked to give their name, address and to confirm the contents of their statement is true
    • the respondent or their representative may then cross-examine the witness about the contents of their statement, and
    • if the applicant or their representative has any questions for the witness which arise from the cross-examination, they can ask them once cross-examination has finished.
  • the respondent’s witnesses may then be called to give evidence. The procedure is similar to that of the applicant. The applicant or their representative may cross-examine and the respondent or their representative may ask further questions if permitted
  • the respondent or their representative will put forward their case, referring to the evidence that has been given
  • the applicant or their representative does the same
  • experts will give evidence
  • the Tribunal Judge may ask questions at any time

2.5.4 The decision

In some cases, the Judge may give an oral decision at a hearing. They may also provide detailed reasons for the decision at the same time. In most cases, however, the Tribunal will make a decision after the hearing, with the reasons for the decision set out in writing and sent to all parties involved.

The Building Safety Act 2022 makes clear that a First-tier Tribunal decision made under or in connection with a remediation order, other than a decision ordering the payment of a sum, will be enforceable with the permission of the County Court. Proceedings will function in the same way as under orders of that Court.

2.5.5 Costs

In the case of remediation orders, the First-tier Tribunal process is cost neutral, meaning that parties will have to bear their own costs. Schedule 8 of the Building Safety Act 2022 also prevents legal costs incurred as a result of a relevant defect being passed onto qualifying leaseholders. This includes costs relating to legal advice and tribunal proceedings, in respect of the remediation order process.

At present, there are no application or hearing fees for any of The Building Safety Act 2022 cases.

It should also be noted that under Rule 13 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the First-tier Tribunal may make an order in respect of costs if a person has acted unreasonably in bringing, defending or conducting proceedings. Guidance from HM Courts & Tribunal Service on what costs and expenses may be recoverable in the First-tier Tribunal makes clear that, to make such an order under Rule 13, the Tribunal must be satisfied that the conduct of the party is unreasonable.

Interested persons who are considering applying for a remediation order should seek their own legal advice throughout the process and should not rely on the information provided in this document.

3. Remedial cost liabilities associated with relevant defects

Potential applicants should consider and familiarise themselves with the Building Safety Act 2022’s leaseholder protections, which may alter liabilities for remediation costs, when deciding whether to apply for a remediation order and against whom. This chapter sets out where liabilities for remediation costs associated with relevant defects and works required under remediation orders may sit under the Building Safety Act 2022. This includes the position for right-to-manage companies (RTMs) and resident management companies (RMCs) in relation to cost liabilities and remediation orders.

3.1 Leaseholder protections under the Building Safety Act 2022

The Building Safety Act 2022 protects leaseholders by limiting, or preventing altogether, the costs that can be passed through the service charge to qualifying leaseholders in connection with historical building safety defects (relevant defects). Statutory protections for leaseholders are provided for under:

Under the Building Safety Act’s statutory leaseholder protections (Schedule 8), remediation costs cannot be passed on to leaseholders, subject to certain exceptions. Where the landlord is not responsible for the relevant defects in the building, and does not have a net wealth of at least £2 million per relevant building (known as the contribution condition, they may be able to recoup a capped contribution from qualifying leaseholders. Any costs which cannot be recovered from leaseholders must be met by the landlord. Landlords who refuse to meet their financial liabilities under the Act and Regulations are acting unlawfully.

See Chapter 4 for useful documents on the regulations and remediation costs in relation to leaseholders.

3.2 RTMs and RMCs: Repairing obligations

RTMs and RMCs are typically leaseholder-run entities that are responsible for the management of their building. RMCs are usually party to the lease (along with the landlord and the leaseholder), but an RTM company is formed by leaseholders and the right to manage is acquired by them exercising their statutory right to take over management of a building. In some cases, repairing obligations may lie with the RMC.

As set out in Chapter 2.1.2, a relevant landlord against whom a remediation order can be sought, is a party who has a repairing obligation under the lease for the relevant building. Enforcement action, including application for a remediation order, can therefore be taken against RMCs if repairing obligations lie with them. However, if a prospective applicant is considering applying for a remediation order against an RMC, it is recommended that legal advice should be sought.

3.3 RTMs and RMCs: Liability for costs

Under regulations and the Building Safety Act’s Schedule 8, any costs (which would otherwise be lawfully recoverable as service charge) above the contribution caps which cannot be recovered from leaseholders, are to be met by building owners. Find out more at Leaseholder contribution caps - GOV.UK (www.gov.uk).

This cost liability applies equally at buildings where there is an RTM or an RMC with a repairing obligation in place. While the repairing obligation may lie with the RMC, the liability to meet costs not recoverable from leaseholders lies with the building owner. RTMs and RMCs are not liable for costs not recoverable from leaseholders and are required to recover these costs from building owners. This is provided for under regulations 3(3), 4(2) and 5(7) of the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022.

The landlord, named manager, RTM or RMC must give notice to landlords or building owners of their liability to pay for relevant measures in relation to a relevant defect under the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022. The landlord or building owner must then pay the RMC or RTM the amount for which they are liable.

Section 124 of the Building Safety Act 2022 introduced an additional civil remedy known as a remediation contribution order. Should a landlord or building owner refuse to meet their cost liabilities under the Act and Regulations, an application for a remediation contribution order can be made with the intention of recovering costs incurred, or to be incurred, in remedying relevant defects. Further guidance on remediation contribution orders will be published in due course.

If those landlords or building owners refuse to meet their cost liabilities associated with relevant measures following service of the appropriate notice, or fail to appeal the notice, then action for a civil debt may be taken by the RTM or RMC against them to recover these sums. A relevant measure is defined in Schedule 8 of the Building Safety Act 2022 a measure, in relation to a relevant defect, taken to remedy the relevant defect, or for the purpose of preventing a relevant risk from materialising, or reducing the severity of any incident resulting from a relevant risk materialising.

4. Relevant documents

The documents listed below are referenced in the guidance and may be useful to refer to when considering or whilst applying for a remediation order.

Previous decisions on the Building Safety Act 2022 and accompanying Regulations

Residential Property Tribunal cases on the Building Safety Act 2022 and accompanying Regulations- Residential property tribunal decisions

Partnership working

Principles for effective regulation of fire safety in flats

The Fire safety provisions for certain types of existing housing (PDF, 1,575 KB)

Leaseholder protections

Building safety leaseholder protections: guidance for leaseholders

Published 16 October 2023
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