Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023

Earl of Lytton Excerpts

Thursday 20th July 2023 Lords Chamber

Moved by

[The Earl of Lytton]

At end to insert “but this House regrets that they have been laid without provisions to remedy operational defects in the Building Safety (Leaseholder Protections) (England) Regulations 2022 (SI 2022/711) and the Building Safety (Leaseholder Protections) (Information etc) (England) Regulations 2022 (SI 2022/859); and further regrets that His Majesty’s Government have not adequately consulted relevant practitioners prior to the laying of these Regulations.”

[The Earl of Lytton (CB)]

My Lords, before I proceed, I thank the Minister for reaching out. We did not succeed in getting a meeting together, but I hope that the bullet points I submitted to her office yesterday were of some help.

As the Minister explained, these regulations amend two previous sets of regulations, SI 2022/711 and SI 2022/859. It is true that these new regulations streamline some of the aspects in those regulations. My point is that they fail to deal with the fundamentals of those earlier regulations, which, given where we are now and what is known about their operation, should have been a proper matter for consideration in the application of regulatory power. They represent a theoretical approach at best and, from all that I have heard from practitioners, do not accord with the real world of buying and selling leasehold flats nor the technical or practical issues associated with conveyancing in particular.

It leaves one wondering where to start with all this. There are too many unknown issues: the extent of remediation; the responsibility that would arise under the Building Safety Act for defects; the true legal liability for those defects having arisen; the cost of remediation; and the potential for “known unknowns”, to quote Donald Rumsfeld, or indeed currently unknowable remediation requirements and their likely cost.

Professionals tell me that they do not believe that the comments made by the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments have been properly addressed. Why is that? There are too many variables, exclusions and qualifications in the process of leaseholder certificates of registration, the content and accuracy of requests to the landlord, the landlord certificates themselves, and the extent to which the landlord is, in turn, reliant on information from others not within its control. There is an essentially continuous iterative process of company worth evaluation and liability assessments. The time lag where land registration is an essential part of the information package, which I understand might occur, is governed by the fact that the Land Registry has a backlog it is working through of several months’ duration.

There seems to be a disparity between the information prevailing on 14 February 2022, which is the mandatory date when matters have to be assessed—certainly as regards matters of company ownership and so on—and the relevant facts relating to the financial consequences of remediation, which will arise only as a result of the regulations tabled initially last summer and not at some point in February at the whim of the Secretary of State. I am told that the timescales are too tight in many instances, leading to a high risk of default liabilities and perhaps setting in place a liability for something not caused by the person deemed liable. I feel that that is unlikely to procure a beneficial result. The strict application of four weeks—or seven days, as the case may be—is severely inflexible and, I believe, an impediment.

All of the above will lead to uncertainty, risks and pitfalls, including, as I mentioned, default liability for remediation or for contribution in full, in part or not at all. The latest clarification on whether a leaseholder’s certificate of registration is required in an application for a landlord’s certificate is that a failure to provide it means that they fall into the non-qualified category; as I understand it, once something is non-qualified, it is non-qualified for ever. I fail to see how that is the advantage that the Minister appears to claim for it. I would be grateful if she could provide better detail about how leaseholders are supposed to check the accuracy of the information provided in that landlord’s certificate. Do the Government intend to use their powers under Part 11 of the Bill, which is entitled “Information about Interests and Dealings in Land”, to ensure that those certificates are in fact accurate? If not, I do not see how it is possible to verify this.

As for the certificates themselves, paragraph 15.c. of the department’s own guidance says that a landlord’s certificate must be provided

“within 4 weeks of them becoming aware of a relevant defect which was not covered by a previous landlord’s certificate”.

How much of a rolling event might that be? The things that affect that certificate were not crystallised on 14 February 2022 but are on an ongoing continuum. I see that as a real question of a practical nature. It means that a fresh certificate can be issued as and when new relevant facts emerge, which is intrinsically inimical to the concept of a reliable landlord’s certificate even if it could be deemed accurate at the time of its issue. It simply opens the door to more arguments about who knew what and when and whether the information provided could have objectively been deemed accurate, with all the consequences that flow from that in terms of recovery, accuracy and liability for cost, not to mention potential arguments through litigation.

Going on from that, the reason why 14 February is so important is because paragraph 17.b. says that the landlord’s certificate must

“be based on the circumstances of whoever was the relevant landlord on 14 February 2022”.

The circumstances of that person may be one thing but the practical and factual basis of what may be germane to that is, as I say, something that happens in real time—today, not 18 months ago. I assume from this that the legal situation is therefore taken at one date but the circumstances that may be germane to making that calculation in fact accrue at another date; I will leave that to one side for the moment. The facts may create a completely moveable feast in terms of whether you take one subsequent piece of information and then feed it back in. How is this loop ever going to be broken?

Does the Minister dispute this assessment? It seems that there is a disparity between the valuation date in question and the facts that are germane to that. It is essential that the financial information about landlords, particularly landlord groups, is provided in the landlord certificate and is accurate. Any inaccuracy could make the difference between a leaseholder paying nothing or up to the £15,000 cap. Concerns have been raised with me that landlords are, for understandable reasons, using the accounting definition of “a group” when it comes to assessing their net worth, rather than the definition of “associated” in the Building Safety Act.

--- Later in debate ---

I can tell the noble Baroness, Lady Taylor of Stevenage, who spoke on behalf of the noble Lord, Lord Kennedy, that as I have said many times at this Dispatch Box, we will bring further leaseholder reforms. That was in our manifesto and we will bring them forward in this Parliament.

[The Earl of Lytton (CB)]

My Lords, I am grateful for the Minister’s comments, for the support of the noble Lord, Lord Stunell, who has much greater credibility in this area than I will ever have, and for the support and comments of the noble Baroness, Lady Taylor of Stevenage.

In a sense, I shrug my shoulders slightly here, because the cat is already coming out of the bag. Yesterday, my attention was drawn to the case of URS Corporation Ltd v BDW Trading Ltd, which is a defective premises case which looks set to attach liabilities to all sorts of people, not just the developer. I appreciate the Minister’s comments about my building safety remediation scheme, which tries to effect strict liability for defects rather than this rather curious containment process that is neither fish nor fowl. None the less, if the Minister does not accept it, and the Government cannot take it on board, I think interaction with the courts and litigation will probably procure it but in a slower, more painful and more gruesome fashion. That is where I think things are heading.

I want to take a moment to pay tribute to some of the people who have helped me. Alison Hills, Zahrah Aullybocus and Stephen Desmond are practitioners who have been very happy to share their experiences with me—and their experiences seem to be widely shared by other professionals. What the department is saying and what is happening in reality seem to be two quite different things.

I quoted from the UK finance guidelines, which are the ones that people look to at the moment, and commented on the professional indemnity insurance issues. These are not matters of regulation. This is not a case of raising a magic wand and saying, “We have made a regulation and therefore it is all right, is it not?” This is the court of practical application in real life.

It appears to me that, notwithstanding what the Minister says, the department does not seem to have consulted in depth with practitioners, otherwise I would not be getting all this feedback from people who have attended seminars and courses and discoursed with specialists in this area. All sorts of people, from the likes of Falcon Chambers downwards through a number of specialist firms and practitioners, are saying the same thing. I suspect that, whatever consultation and discussion process is going on—noting that they do not have a duty at all to consult on this—the Government do not appear to be getting their information from the sources they need, and the proof of the pudding is what is happening in the market.

The Government do not appear to have acquainted themselves with the actual experience of leaseholders and professionals. Over recent weeks, some 240 individuals have written to me about one thing or another—not necessarily about this particular set of regulations but about the way in which the Building Safety Act provisions and regulations are not working for them. I believe that is simply the tip of the iceberg.

Although I will continue to press for much more significant reform, and I appreciate the support from all round the House on this, it is not my intention to put this to a vote. I end by saying that I am grateful for the positive points of clarification that the Minister has been able to make on landlord certificates and leaseholder extensions. I certainly look forward to the opportunity of having a dialogue with her and her officials as time goes forward, and perhaps bring together some of the experts that have been helping me. With that, this is not the time to press this amendment, and I beg leave to withdraw.

Amendment to the Motion withdrawn.