Leaseholder Protections

Most of the Building Safety Act sets out what must be done to make buildings safe. Part 5 decides who pays for it. For a leaseholder in a building with fire safety defects, this is the part that determines whether a remediation bill arrives capped, reduced to nothing, or in full.

Three questions decide everything

The protections are often described as complicated. They are not, once the sequence is clear. Three questions run in order, and each one has to be answered yes before the next matters.

Is it a relevant building? A self-contained building or part of a building containing at least two dwellings, and either at least 11 metres high or at least 5 storeys. Note that this is a lower threshold than the higher-risk building definition used for safety case reports. A building can fall outside the higher-risk regime and still be squarely inside the leaseholder protections.

That height threshold is contested. A Private Member’s Bill now at Committee stage in the Lords would remove it entirely, though it is not law and is unlikely to become law in its present form.

Is it a relevant defect? A defect arising from work done in the 30 years to 28 June 2022 that causes a building safety risk, meaning a risk to the safety of people in or about the building from the spread of fire or the collapse of the building or any part of it.

Is it a qualifying lease? This is the one that turns on the leaseholder’s own circumstances at the beginning of 14 February 2022, and the one that requires a document from the leaseholder to establish. It is covered in full on the deed of certificate page.

What the protections are worth

Where a lease qualifies, Schedule 8 caps the total that can be charged towards remediating relevant defects across the life of the lease. The figure depends on where the premises are and what the lease was worth at the qualifying time.

No more than one tenth of the permitted maximum may be charged in any twelve month period. So a leaseholder at the £15,000 cap cannot be asked for more than £1,500 in a year, and the cap is a lifetime figure for the lease rather than a per-project one.

When the answer is nothing at all

Paragraph 3 of Schedule 8 goes further than a cap. Where the landlord met the contribution condition, no service charge is payable at all by a qualifying leaseholder for a relevant measure.

The condition is a net worth test. It is met where the landlord group’s net worth at the qualifying time exceeded £2,000,000 multiplied by the number of relevant buildings the group held. A landlord with ten relevant buildings and a net worth above £20,000,000 is inside it.

The test does not apply to social housing providers, local authorities or prescribed persons, so a housing association or council landlord is not caught by it on the strength of its balance sheet alone.

The two certificates, and why they are not the same thing

The regime runs on two documents that are routinely confused, including by people who have to produce them. They are made under different instruments, produced by different parties and do different jobs.

The sequence matters. The leaseholder’s deed establishes whether the lease qualifies. The landlord’s certificate then establishes what the landlord can recover from a lease that does. One does not substitute for the other, and a landlord who has received no deed still has to certify.

Failing to certify is the expensive option

This is the part landlords and resident management companies most often miss, and it is the strongest argument for treating the process as a managed programme rather than correspondence.

If a landlord fails to provide a compliant certificate when required, the condition that would have protected the landlord is treated as met. No service charge then becomes payable by qualifying leaseholders for that measure. The cost does not disappear. It transfers to the company.

For a resident management company, that is a cost falling on the very leaseholders who own it, arriving through a route that none of the protections cap. Getting the paperwork right is not administration. It is the difference between a recoverable cost and an unrecoverable one.

Where a building has more than one landlord, a relevant landlord must supply the current landlord with corporate structure and storey percentage information within three weeks of a request, under SI 2022/711 regulation 7.

How long the liability runs

Section 135 of the Act inserted section 4B into the Limitation Act 1980 and extended the time available to bring claims for defective work. It came into force on 28 June 2022.

For claims under section 1 of the Defective Premises Act 1972 where the right of action accrued before that date, the limitation period is 30 years. For rights of action accruing after it, the period is 15 years.

That is why records matter long after the work is finished. A claim about a building completed in the mid 1990s can still be brought, and the evidence that answers it is the evidence somebody kept.

Common questions

Does my building have to be a higher-risk building for the protections to apply?

No, and this is the most common misunderstanding. The leaseholder protections use the relevant building test: at least two dwellings and either at least 11 metres or at least 5 storeys. The higher-risk building regime, which governs safety case reports and building assessment certificates, starts at 18 metres or 7 storeys. A building between the two thresholds is outside the safety case regime and inside the leaseholder protections.

Is the cap per project or for the whole lease?

For the whole lease. The permitted maximum is a lifetime figure covering all relevant measures, not a fresh allowance for each remediation project. Amounts already paid towards relevant measures since 28 June 2017 count towards it.

What happens if a leaseholder never returns a deed of certificate?

The lease can be treated as not qualifying, and the protections do not attach. But the landlord cannot simply send one letter and rely on silence. SI 2022/859 regulation 6(8) requires a second notice and a telephone call before the reply date. A landlord who skipped that has not complied with the procedure.

Do the protections apply in Wales?

No. The leaseholder protections in Part 5 extend to England only. Welsh buildings are covered by a separate framework, and the Building Safety (Wales) Act 2026 does not replicate these provisions.

Can a landlord charge for producing the certificates?

No. The leaseholder cannot be charged for completing a deed of certificate, and the landlord may not charge for sending any of the notices required by the regulations. A leaseholder may pay a small HM Land Registry fee for title documents used as evidence.