Building Safety – Historic Cladding Claims under the Building Safety Act 2022: Liability, Limitation, and Recovery
The Building Safety Act 2022 (“BSA”) has dramatically expanded the legal avenues available to building owners, leaseholders, and regulators seeking redress for historic building safety defects, particularly those involving unsafe cladding systems. In response to the legacy of the Grenfell Tower tragedy, the BSA introduces new rights of action, extends limitation periods, and empowers courts to pierce corporate structures to hold responsible parties accountable.
This fifth article in our Building Safety series explores the key mechanisms for historic cladding claims under the BSA, focusing on liability exposure, time limits, and recovery tools.
Extended Limitation Periods: A 30-Year Lookback
One of the most significant reforms under the BSA is the extension of limitation periods for claims under the Defective Premises Act 1972 (“DPA”). Previously, claimants had six years from the date of completion to bring a claim but the BSA now provides:
- A 30-year limitation period for claims arising from works completed before 28 June 2022
- A 15-year limitation period for claims arising from works completed on or after 28 June 2022
These changes apply to both:
- New builds: Where the dwelling was unfit for habitation due to defective construction
- Refurbishments: Under new Section 2A of the DPA, which extends liability to those undertaking any work on a building containing a dwelling
Developers, contractors, and consultants may now face claims for buildings completed as far back as 1992. This creates significant exposure, especially where cladding systems were installed using materials now deemed unsafe.
Section 38 of the Building Act 1984: A Dormant Cause of Action Revived
Section 38 of the Building Act 1984 creates a statutory right of action for breach of building regulations that causes damage. “Damage” includes:
- Death or injury
- Disease or impairment of physical or mental condition
- Property damage
Although Section 38 has not yet been brought into force, its activation would allow claims for breach of building regulations even where no contractual relationship exists. This could significantly widen the pool of potential defendants, including product manufacturers and subcontractors.
RWK Goodman is monitoring the status of Section 38 closely. If enacted, it could become a powerful tool for claimants seeking redress for regulatory breaches that contributed to unsafe cladding installations.
New Enforcement mechanisms: Compelling Action and Cost Recovery
The BSA introduces a number of new enforcement mechanisms:
1. Remediation Orders
- Issued by the First-tier Tribunal, these orders compel landlords or developers to carry out remediation works to address building safety defects. They are particularly relevant where:
- Unsafe cladding remains in place
- Leaseholders have limited ability to fund works
- The responsible party is identifiable and solvent
2. Remediation Contribution Orders
These orders, made by the First-tier Tribunal, require associated entities, such as group companies or parent companies, to contribute to the cost of remediation, even if the original developer is dissolved or insolvent. The tribunal must be satisfied that the entity is “associated” and that it is just and equitable to make the order.
These orders allow claimants to pierce the corporate veil and pursue entities that may have sought to avoid liability through special purpose vehicles or shell companies.
3. Building Liability Orders
In addition to remediation orders, the BSA empowers the High Court to issue Building Liability Orders. These allow claimants to pursue associated entities for liabilities arising under the DPA or other building safety legislation by effectively extending the liability of the wrongdoer to the associated entity. The court must consider whether it is just and equitable to do so, the factors being considered subject to recent judicial comment, including:
- The structure of the corporate group
- The role of the associated entity in the development
- The availability of other remedies
Developers using complex corporate structures must assess their exposure to liability across group entities. Parties should review governance, insurance, and historic project documentation to prepare for or head off potential claims.
Conclusion: A New Era of Accountability
The BSA has opened the door to historic cladding claims that were previously time-barred or unviable. With extended limitation periods, revived statutory causes of action, and powerful enforcement tools, the BSA empowers leaseholders and regulators to pursue redress across decades and corporate boundaries.
Parties need to understand the full scope of the BSA’s redress mechanisms and prepare for a new era of accountability in building safety. RWK Goodman’s specialist team has experience of pursuing and defending claims under the BSA and can provide strategic advice on all types of building safety claims.
