The bill incorporates notable changes in relation to limitation periods for any dwellings of one or more regardless of height. They include an extension of the time limit for claims under the Defective Premises Act and breaches of the Building Regulations during construction from six years to 15 years, which will apply retrospectively once the legislation is in force. Defences to the extended limitation period would arise where allowing the claim would either contravene human rights or the claim has already been settled or dismissed.
The bill also introduces a new duty for building owners to take all reasonable steps to seek alternative ways to meet the cost of remediation works before these costs can be passed to homeowners. Developers will be required to join and remain members of the New Homes Ombudsman scheme, which will require them to provide redress to homebuyers where necessary; while a new building safety charge, payable by leaseholders, will cover ongoing but not historical costs.
Property investment and building safety experts at Pinsent Masons, the law firm behind Out-Law, described the legislation as a “mixed bag” for building owners and landlords.
“In some respects, the provisions are helpful as they give landlords rights to enter into residential units and recognise that tenants have a part to play in building safety,” said Natalie Harris. “However, the recovery provisions will be of concern as they will have the impact of limiting what is recoverable from tenants.”
“This is inevitably going to have an impact on the value and liquidity of assets where compliance with building safety requirements cannot be demonstrated and will make it crucial that proper due diligence is undertaken,” she said.
Zoe de Courcy Arbiser added that the retrospective limitation provisions would “likely be highly controversial, particularly when consideration is given to whether defendants in previously time-barred cases have a fair right to trial”.
The new regime will incorporate specific ‘gateway points’ at design, construction and completion phases, at which building safety and fire safety risk must be considered. Planning gateway one is due to come into force on 1 August, while further details of gateways two and three, at pre-construction and pre-occupation, will be confirmed once the bill reaches committee stage. However, they are not expected to enter into force until 18 months after Royal Assent.
“As the short lead-in time for the implementation of gateway one was a surprise, the transition to the new arrangements is especially important,” said health and safety law expert Sean Elson. “The attempt at bringing clarity, through the timeline for the possible introduction of the various measures published among the government documents, is welcome.”