Building Safety – Navigating the New Regulatory Landscape

In the fourth article of our Building Safety series, we explore three key pillars of the new regulatory landscape: higher-risk buildings, designated dutyholders, and leaseholder protections.

At the heart of the BSA is the concept of the “higher-risk building”, a classification that triggers enhanced regulatory obligations. The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 define these as buildings that:

• Are at least 18 metres in height or have 7 or more storeys; and
• Contain at least two residential units.

This classification is not static. The obligations differ depending on whether the building is:

• In the design and construction phase, where gateway approvals and dutyholder competence requirements apply; or
• In occupation, where registration, safety case reporting, and resident engagement duties are triggered.

Mixed-use developments and portfolios containing both residential and commercial elements may fall within scope, requiring careful legal analysis. For example, a retail-led scheme with residential units above may be subject to the higher-risk regime even if the residential component is minor.

Misclassification can result in non-compliance, enforcement action, or invalid service charge recovery. It is therefore important to assess each asset’s physical characteristics, use class, and occupancy status to determine regulatory exposure.

The BSA introduces new dutyholder roles that sit alongside existing fire safety obligations. Two key roles are:

1. Accountable Person (“AP”)

The AP is any individual or organisation legally responsible for the maintenance of common parts in a higher-risk building. This includes:

• Freeholders
• Landlords
• Management companies
• Resident management companies

Where multiple APs exist, the Principal Accountable Person (“PAP”) is the entity responsible for the structure and exterior of the building. The PAP must:

• Register the building with the Building Safety Regulator (BSR)
• Submit a safety case report
• Maintain the golden thread of information
• Engage with residents and regulators

2. Responsible Person (“RP”)

Under The Regulatory Reform (Fire Safety) Order 2005, the RP is responsible for fire safety in non-domestic premises and the common parts of residential buildings. Duties include:

• Conducting fire risk assessments
• Implementing fire precautions
• Ensuring safe evacuation procedures

Confusion between AP and RP roles can lead to gaps in safety management and enforcement exposure. Parties should ensure that leases, management agreements, and governance documents clearly allocate these responsibilities.

It is best practice to include express clauses in leases and contracts identifying the AP and RP, their duties, and cooperation mechanisms.

One of the most impactful elements of the BSA is its protection of leaseholders from excessive remediation costs. For buildings over 11 metres, the BSA introduces:

• Limits on service charge recovery for safety-related works
• Restrictions on passing costs to leaseholders where the developer or landlord is responsible
• Remediation orders and contribution orders that compel responsible parties to carry out or fund works

The BSA also amends the Landlord and Tenant Act 1985 to imply new covenants into leases of higher-risk buildings, including:

• A duty on landlords to comply with building safety obligations
• A duty on tenants to cooperate with safety measures and allow access

These protections are tightly regulated. For example, costs cannot be recovered from leaseholders if the building owner is associated with the original developer, or if the defect arises from non-compliant work.

Given the protections available to leaseholders, buyers or landlords of residential portfolios should carefully review historic defects, funding arrangements, and lease terms to determine potential exposure to remediation costs.

The BSA has fundamentally changed how building safety is regulated, enforced, and litigated. It creates a multi-layered regulatory regime that intersects with planning law, fire safety legislation, landlord and tenant law, and corporate governance. Parties must:

• Classify assets correctly under the higher-risk regime
• Identify and document dutyholder roles
• Navigate fire safety and building safety obligations
• Understand and apply leaseholder protections
• Consider enforcement risk and strategic compliance

Failure to do so risks enforcement action, financial exposure, and reputational harm. As the regime matures, proactive legal interpretation and strategic compliance will be essential.

RWK Goodman acts for developers, landlords, housing associations, investors, and in-house legal teams helping clients understand and navigate the new regulatory landscape with clarity, confidence, and foresight.