Case Study: Building Safety Act 2022 - First Tier Tribunal case of Will & Koterba v G&O Properties by James Macdonald, Senior Conveyancing Executive at TMT Legal Services LLP.
The Building Safety Act 2022 continues to present hurdles for owners of flats, particularly those who are selling and trying to navigate the documentary minefield that now goes with it. This has been made no easier following the First Tier Tribunal case of Will & Koterba v G&O Properties.
In this case, the owners, Will & Koterba, were selling their flat, situated in a “relevant building” under the Act. Despite repeated requests of the landlord, G&O Properties, for a Landlord’s Certificate to be provided, nothing was forthcoming. The owners therefore made an application to the Tribunal for an Order to compel the landlord to provide the certificate. However, despite the Act requiring a landlord to provide a certificate within 4 weeks of a request to do so, the Tribunal concluded that they did not have the authority to compel the landlord to actually do this.
It therefore poses a question as to whether some landlords will bother to provide a certificate, if there is no immediate recourse in not doing so? For context, the landlord in this case would not have been entitled to recover fire safety remediation costs from the tenants anyway, as their net worth was such that they were prevented from doing so under the Act. The practical sanction for a landlord failing to provide a certificate is that they would be unable to recover remediation costs from the tenant, but if they’re not able to do this anyway, would they necessarily go to the administrative burden of producing the certificate in the first place?
Where a certificate is not provided, this presents a practical difficulty for buyers, sellers and their conveyancers, as mortgage lenders will insist on the conveyancer being provided with the Landlord’s Certificate where the flat is within a relevant building. If a certificate is not provided, the lender may choose not to lend at all, despite the fact that, in a situation such as Will & Koterba, they would still be protected against the cost of any remediation works. Until further precedents on the subject are set, this could prove to be a challenging conversation with lenders.
It’s worth noting too that recent “Amendment Regulations” to the Building Safety Act have gone a little way to alleviating the issue, in setting out that landlords no longer need to provide the very comprehensive bundle of supporting documentation with the Landlord’s Certificate, if they are unable to pass remediation costs on. However, the outcome of the case serves as a further reminder that the legislation as currently drawn is not particularly fit for purpose and does little to ease the current woes of flat owners.
Speak to our team of experienced Conveyancers to find out more and to see how TMT can help you. Contact us on 0333 188 4758, visit our website: www.tmtlegalservices.co.uk or email: enquiry@tmtlegalservices.co.uk.