The Act makes ground-breaking reforms designed to improve the way in which building safety risks are assessed, monitored and reduced in ‘Higher-Risk Buildings’ (‘HRB’) in England and Wales.Its goal is to give residents and homeowners more rights, powers and protections, so homes across the country are safer.It does so by, among other things, mandating two new roles involved in building safety for HRBs: Accountable Persons (APs) and the Principal Accountable Person (PAP).
Who are Accountable Person(s) and the Principle Accountable Person?
It is possible to be an AP for a HRB either by holding a legal estate in possession of any part of the ‘common parts’ or by having a ‘relevant repairing obligation’ in relation to any part of the ‘common parts’.
Common parts means:
- the structure and exterior of the building (except that which is included in a single dwelling or in premises occupied for a business purpose); or
- any part of the premises provided for the use, benefit, and enjoyment of the residents of more than one residential unit.
A ‘relevant repairing obligation’ is a repair or maintenance obligation imposed either under a lease or by virtue of an enactment.
However, the estate owner is not an AP where:
- (i) the relevant legal estate (e.g. the leasehold or freehold) is let on a long lease of over 21 years or has a perpetual renewal and (ii) the obligation to undertake repairs to the common parts is imposed on the leaseholder; or
- where all the repairing obligations are the function of a Right to Manage (RTM) Company.
In practice, an AP is therefore a legal person who is responsible for the building i.e. the individual, partnership or body corporate who has the right to receive funds through service charges and who is responsible for the fire and structural safety of the building during occupation.
Note that it is possible for there to be more than one AP for the same HRB. By contrast, there can only be one PAP.
Principal Accountable Person
Where there is only one AP, the PAP will be that person. Where there is more than one AP, the PAP will either be the AP who:
- the leaseholder or freeholder who has the physical right to occupy these areas (ie the person who holds a legal estate in possession of the relevant parts of the structure and exterior of the building); or
- is the AP who has the obligation to undertake repairs to the structure and exterior of the building.
If the PAP cannot be determined, then the potential candidates and/or the Building Safety Regulator (BSR) may apply to a Tribunal to determine the issue.
What must the Accountable Person(s) and the Principle Accountable Person do?
The Act places a range of statutory duties on AP(s) and the PAP, as duty holders:
What does the introduction of the AP and PAP roles mean for the industry?
By introducing these roles and the respective duties that fall on those who fulfil them, the Government hopes to drastically improve the level of compliance and accountability in relation to the safety of high-rise buildings (amongst others), and therefore lead to a safer and more transparent industry.
The practical consequences for commercial organisations with an interest in high-rise residential buildings will be significant work in the short term to ready themselves for the new regime coming fully into force.
There will be an ongoing increase in oversight and compliance costs as the Building Safety Regulator scrutinises developments more closely, and this may necessitate formal agreements between duty holders to ensure that cooperation is fully achieved and that the regulatory obligations are discharged. In the event of incidents or potential breaches there is a risk of intervention, or even prosecution, by the regulator.
Professionals with the requisite skills are in short supply, posing an additional challenge to duty holders to properly resource and deliver on the exacting standards imposed by the Act. Early identification, engagement and appropriate resourcing of professional support and control measures will be essential to achieve compliance.