Who Really Pays? Schedule 8 Protections for Leaseholders Under the Building Safety Act 2022

Schedule 8 of the Building Safety Act 2022 (“BSA 2022”) is designed to protect leaseholders from unfair remediation costs. It acts as a shield, preventing those who did not create the problem from being burdened with the bill.

The certification regime is what determines when that ‘shield’ applies and who is ultimately responsible for the costs. Leaseholders are required to complete a leaseholder deed of certificate (“LDoC”) and landlords are required to complete a ‘landlord certificate’ under the certification regime.

For many leaseholders, the protections work exactly as intended. A first‑time buyer who purchased long before the implementation of the BSA 2022, for example, can rely on their LDoC to confirm they are a qualifying leaseholder (if they meet the requisite criteria). Their contribution towards BSA 2022 related remediation costs will then be capped or removed entirely.

Landlord certificates evidence whether the current landlord is responsible for any relevant defects identified and confirms if they meet either the ‘developer’ or ‘contribution condition’. A landlord’s failure to provide a landlord certificate could mean that they assume liability for relevant defects where they may not otherwise have been liable. The regime therefore ensures that delay or non‑compliance cannot be used to shift liability onto leaseholders. All landlords ‘under a lease’ at a building are required to issue a landlord certificate.

The certification regime also plays a crucial role in property transactions. Lenders increasingly require both LDoC’s and landlord certificates before progressing with mortgage applications, and without them, sales can stall. When certificates are readily available, they provide clarity and allow transactions to move forward with confidence.

The certification regime is an integral part of the changes brought in by the BSA 2022 and it is important for landlords, leaseholders, RMCs/RTMs and managing agents to understand the rights and restrictions under Schedule 8 BSA 2022 and the certification regime.

At RWK Goodman we understand the importance of the certification regime in property transactions and when advising existing leaseholders and purchasers understand their protections under Schedule 8 BSA 2022. We also assist managing agents and landlords with understanding if charges for ‘Relevant Defects’ defined in the BSA 2022 can be charged to leaseholders or whether funding can be obtained from government schemes or other third parties.