The Building Safety Act 2022: A Directors' Guide

Two parts of the Building Safety Act 2022 matter to a volunteer director, and each has its own height threshold — which is the first thing to get straight. If your block is at least 18 metres tall or has at least 7 storeys, your company is probably an "accountable person" with a set of statutory duties. Separately, if your block is at least 11 metres high or has at least 5 storeys, Schedule 8 limits what you can recover through the service charge for remediating certain building safety defects.

The first only applies to tall buildings. The second reaches further down — it catches mid-rise blocks nowhere near the higher-risk threshold — and it is the one that catches directors out, because it restricts the service charge, which is your money-collecting mechanism. But it is not unlimited either. Below 11 metres and below 5 storeys, neither regime applies.

Both regimes described here are England-only. Section 65 defines a higher-risk building as "a building in England", and the Schedule 8 protections apply only to a "relevant building", which section 117 defines as a self-contained building "in England". A Welsh block is outside both.

Is your block a higher-risk building?

Section 65 of the Building Safety Act 2022 sets the threshold. A higher-risk building in England

"is at least 18 metres in height or has at least 7 storeys"

and

"contains at least 2 residential units"

Note the "or". A seven-storey building under 18 metres still qualifies. If your block is anywhere near either figure, get the measurement confirmed rather than estimating — the consequences of being wrong run in both directions.

Most self-managed blocks are well under this. A three-storey conversion or a five-storey purpose-built block is not a higher-risk building, and the rest of this section does not apply to you.

Whether the Schedule 8 cost protections below apply is a separate question, on a lower threshold. The five-storey block is very likely inside them. The three-storey conversion, unless it is at least 11 metres high, is outside them altogether — Schedule 8 gives it nothing.

When your company is the "accountable person"

If your block does meet the threshold, section 72 defines who carries the duties. An accountable person is, in essence:

• a person holding a legal estate in possession in any part of the common parts, or
• a person who holds no legal estate but is under a relevant repairing obligation in respect of the common parts.

That second limb is the one RTM directors need to read twice. An RTM company holds no legal estate — the freeholder keeps the freehold — but it does take on the repairing obligations for the common parts when it acquires the right to manage. Our guide to what the Right to Manage transfers covers that handover; section 96 of the 2002 Act puts repairs and maintenance squarely in the transferred set.

An RMC that owns the freehold is caught by the first limb instead.

Either way, the practical consequence is the same: in a higher-risk building, the company you volunteer for may carry statutory building safety duties, including registration of the building and duties around assessing and managing building safety risks. The government's guidance on registering a high-rise residential building is the starting point.

This is not a duty to take on informally. If your block is over the threshold and nobody has established who the accountable person is, that is a question for the company's solicitor, and it should go on the agenda of the next board meeting rather than waiting for an AGM.

The Schedule 8 cost protections — the part that affects your service charge

This reaches further down the height range than the higher-risk regime, and it is where directors most often assume they can recover a cost they cannot. But it has its own gate, and a large number of self-managed blocks sit outside it entirely.

First: is your block a "relevant building"?

Everything in Schedule 8 turns on that term. Section 117 applies

"for the purposes of sections 119 to 124 and Schedule 8"

and defines it:

"'Relevant building' means a self-contained building, or self-contained part of a building, in England that contains at least two dwellings and— (a) is at least 11 metres high, or (b) has at least 5 storeys."

Then read section 117(3), because it cuts straight across the blocks this site is written for. A relevant building

"does not include a self-contained building or self-contained part of a building— (a) in relation to which a right under Part 1 of the Landlord and Tenant Act 1987 (tenants' right of first refusal) or Part 3 of that Act (compulsory acquisition by tenants of landlord's interest) has been exercised, (b) in relation to which the right to collective enfranchisement (within the meaning of Chapter 1 of Part 1 of the Leasehold Reform, Housing and Urban Development Act 1993) has been exercised, (c) if the freehold estate in the building or part of the building is leaseholder owned (within the meaning of regulations made by the Secretary of State), or (d) which is on commonhold land."

That set matters more than it looks. If your block has been through collective enfranchisement, or the leaseholders exercised a 1987 Act right, it is outside the definition — and Schedule 8 does not restrict your service charge at all. The protections were built for leaseholders facing a third-party landlord's remediation bill; where the leaseholders have already bought the building, Parliament left them out.

The limb at (c) — a freehold owned by the leaseholders by some other route — depends on regulations made by the Secretary of State, so if that is your position, take advice on whether the exclusion bites rather than assuming it either way.

If your block is under the height threshold, or falls in one of those exclusions, the rest of this section does not apply to you and the recovery question is the ordinary one: what the lease permits and what section 19 allows.

If you are inside: what Schedule 8 stops you charging

Schedule 8 then restricts what can be charged through the service charge. Two provisions do most of the work — and, this is the part most often got wrong, they do not have the same scope.

On defects the landlord is responsible for, paragraph 2 covers every lease in the building. It opens

"This paragraph applies in relation to a lease of any premises in a relevant building."

and provides:

"No service charge is payable under the lease in respect of a relevant measure relating to a relevant defect if a relevant landlord— (a) is responsible for the relevant defect, or (b) is associated with a person responsible for a relevant defect."

Read that as it is written: "under the lease", not "under a qualifying lease". Paragraph 2 does not filter by grant date or by how many flats the leaseholder owns.

On cladding, paragraph 8 is absolute but narrower in reach:

"No service charge is payable under a qualifying lease in respect of cladding remediation."

That protection is confined to qualifying leases. So are the other main limits: the landlord contribution condition (paragraph 3), the low-value lease exemption (paragraph 4), the overall and annual caps (paragraphs 5 and 7), and legal and professional costs relating to a relevant defect (paragraph 9).

Read that in the context of your service charge accounts and the implication is stark. A cost can be perfectly reasonable, properly consulted on under Section 20, and correctly demanded — and still be irrecoverable, because Schedule 8 says it is not payable at all. Reasonableness under section 19 and payability under Schedule 8 are separate questions.

Which leases are protected — and which protections that governs

Section 119 defines a qualifying lease. It must be

"a long lease of a single dwelling in a relevant building"

under which the tenant pays a service charge, and — the condition that does the filtering — the lease must have been

"granted before 14 February 2022"

The leaseholder must also have met an ownership condition at that date: the dwelling was their only or principal home, or they owned no more than three UK dwellings in total including this one.

The practical consequence for a director is uncomfortable but important: within one block, some leases will be qualifying and some will not. A flat bought by a landlord with a large portfolio may fall outside the qualifying-lease protections while the flat next door falls inside them.

But keep the two scopes apart, because this is where a wrong demand gets made. The qualifying-lease test governs paragraphs 3, 4, 5, 7, 8 and 9 — the cladding protection among them. It does not govern paragraph 2. Where a relevant landlord is responsible for the defect, no service charge is payable in respect of it under any lease in the building, qualifying or not. Treating the whole of Schedule 8 as lease-by-lease is how directors end up demanding a sum from a non-qualifying leaseholder that paragraph 2 had already made unpayable.

What to actually do

1. Establish your height and storey count. Once, properly. It decides two separate questions: whether the higher-risk regime applies (18 metres or 7 storeys) and whether the Schedule 8 protections apply at all (11 metres or 5 storeys).
2. If you are over the higher-risk threshold, get advice on the accountable person question. Do not assume it is the freeholder simply because they own the building — the repairing-obligation limb can put it on an RTM company.
3. Before demanding anything remediation-related, work out whether you are a "relevant building". Height first, then the section 117(3) exclusions — enfranchised and 1987 Act blocks are outside Schedule 8 entirely. This is the step that gets skipped. If you are inside it, a demand that Schedule 8 makes unpayable is not recoverable no matter how carefully you consulted.
4. Know which of your leases qualify — and what that actually governs. The 14 February 2022 grant date and the ownership conditions vary flat by flat, and they decide the cladding protection in paragraph 8. They do not decide paragraph 2, which applies to every lease in the building. Record the qualifying status in your leaseholder data rather than working it out under pressure.
5. Do not fund remediation from the reserve fund on the assumption you can top it back up. If the cost turns out to be unrecoverable under Schedule 8, you have spent money you cannot replace. Our guide to reserve funds and sinking funds covers how reserves should be protected.

Building safety is one of the few areas where getting it wrong is expensive in both directions — under-recovering leaves the block short, and over-demanding creates a liability. When the sums are material, take advice before the demand goes out, not after a leaseholder challenges it.

LevyBoard is building guided block management software for volunteer directors — service charge accounting, arrears tracking, and Section 20 compliance, designed for people who did not sign up to become property managers.

Both regimes covered here — the higher-risk building duties and the Schedule 8 cost protections — apply to buildings in England only; a Welsh block is outside both. This is general information, not legal advice. Building safety liability and the Schedule 8 protections are technical and fact-specific — where remediation costs are in play, take advice from a solicitor specialising in building safety before demanding any sum through the service charge.

Sources

• Building Safety Act 2022, section 65 — meaning of "higher-risk building"
• Building Safety Act 2022, section 72 — meaning of "accountable person"
• Building Safety Act 2022, section 117 — meaning of "relevant building"
• Building Safety Act 2022, section 119 — meaning of "qualifying lease"
• Building Safety Act 2022, Schedule 8 — remediation costs under qualifying leases etc
• GOV.UK — Register a high-rise residential building
• Commonhold and Leasehold Reform Act 2002, section 96 — management functions transferred on RTM