In 2017, a fire at Grenfell Tower in West London killed 72 people. The shocking and tragic incident occurred as an enormous fire tore through the building so quickly that residents couldn’t escape.
The tragedy exposed a nationwide failure of building regulations and, over the past few years, a raft of significant changes have been made to the rules around safety for multi-occupied buildings.
In March 2021, it was estimated that around 1.5 million flats in the UK were clad in flammable materials or had other fire safety issues, with around 750,000 landlords affected. As of June 2022, the Association of Residential Managing Agents said that about half a million people were still living in a building with some form of unsafe cladding.
Although a great deal of remedial work has been carried out to date, there is still more to be done to make sure that all buildings occupied by multiple households are as safe as possible.
Most recently, the Building Safety Act 2022 and the Fire Safety Regulations 2022 came into force, heralding “the biggest improvements in building safety for a generation” (Department for Levelling Up, Housing and Communities).
Here, we cover the changes that have been made since Grenfell and what that’s meant for property owners, landlords, leaseholders and the wider industry:
In the wake of Grenfell, the Government tightened fire safety regulations for flats. One of the immediate results of this was that flat sales started falling through, with mortgage lenders requiring proof that the properties met the stated safety guidance.
So, in December 2019, the Royal Institute of Chartered Surveyors launched the External Wall System form (EWS1), to provide lenders and buyers with proof that an assessment has been carried out on the external walls of residential apartment buildings to make sure they are suitably clad for reducing combustibility and the spread of fire.
This assessment needs to be carried out by a qualified professional, such as a Chartered Construction Professional, to confirm that the building meets safety standards - or whether remediation work is needed. RICS states on its website:
“The EWS1 form must be completed by a fully qualified member of a relevant professional body within the construction industry with sufficient expertise to identify the relevant materials within the external wall cladding and attachments, including whether fire resisting cavity barriers and fire stopping have been installed correctly.”
Once the form has been completed and signed, it’s valid for five years for the entire building. This means flats don’t need to be individually assessed.
EWS1 in Scotland
In Scotland, separate EWS1s can be required on a flat-by-flat basis due to its different legal system. RICS is working with the Scottish Government to find a solution to this issue through the Single Building Assessment (SBA).
The only way you can find out if your building needs an EWS1 certificate in order to be sold or re-mortgaged is by having an initial assessment carried out.
Originally, the form only applied to buildings above 18 metres in height, but in January 2020, the Government changed the criteria to potentially include all residential buildings of any height. However, not every building will require an EWS1.
In March 2021, RICS published its guidance for valuers, with updated criteria to help them decide whether a particular building should need an EWS1.
Apart from the height of the building, the type of cladding will be considered (including how much of it there is on the building) and balconies and combustible materials are another determining factor. But, ultimately, valuers must follow the instructions given by their lender clients.
The responsibility for organising this assessment lies with the building owner (freeholder) or managing agent.
If you’re selling a flat, the first step is to ask the owner or agent whether there is already a valid EWS certificate, or if an assessment has shown that one is not required. In either case, they need to provide you with the information.
If an assessment has not already been carried out, they need to arrange for one.
If the building owner or managing agent cannot provide you with the information you need and refuses to undertake the assessment, you should contact your local council authority for advice and help.
As already mentioned, you need specifically qualified engineers to carry out the intrusive checks on external walls.
When the new rules first came into force, there were a very limited number of fire engineers who were qualified to assess properties, which resulted in a backlog and delays for sellers and buyers.
According to the Fire Protection Association, at the end of 2020, 43% of leaseholders had been told the process could take more than two years.
To help tackle this shortage of qualified assessors, RICS launched a new training programme in January 2021 to enable their chartered surveyors to undertake the assessments, and a new government-backed professional indemnity insurance scheme for EWS1 assessors was launched in September 2022.
However, with thousands of housing associations, building owners and management companies requesting assessments, and the process itself from assessment to final certification being fairly time-consuming, it could take between six and twelve months or even longer to obtain the EWS1 certificate.
There’s also the issue of what happens if your building fails to pass the safety requirements. In September 2020, the Fire Protection Association conducted a survey which concluded that 89% of buildings that had received an external wall fire assessment required remediation work. Of course, fixing the structural façade of a large building is no mean feat.
This means that some landlords and homeowners who want to sell or buy flats are effectively trapped in a bottleneck until the EWS1 can be secured.
In 2021, Lauren Thomas, one of our experienced account handlers at Total Landlord, spent more than eight months waiting to exchange on a flat in a four-storey building in Stevenage, Hertfordshire.
“I made an offer on a first floor flat that was built in 2013, so it was relatively new. When the mortgage was accepted, it said that there was cladding on the property and my solicitor told me that the building’s management company was going to be undertaking a survey on the property because of the regulation.
The results of this survey were returned to the current leaseholders after two months, and showed that the property had failed the external survey and might need remedial works. This could have taken six to twelve months, with the costs potentially pushed back on the leaseholders. The final decision was subject to a fire engineer’s report, which subsequently showed that the cladding was safe and didn’t need any remedial work – but finding out this information took even more time. Then, since I work in insurance, I didn’t want to proceed with the purchase until I found out that Aviva, who insured the block, were going to continue to do so, subject to this information.”
Lauren Thomas, Property Account Handler
Lauren advises that landlords who are considering buying a new flat consider the points below before making an offer. Those looking to sell similar properties could also learn from her experience.
1. Establish whether the property has cladding or not
Although the cladding on Lauren’s building was deemed safe, considering purchasing a property with any cladding does risk a lengthy assessment period and potential difficulties from mortgage lenders. Even when an ESW1 is provided, some lenders still appear reluctant.
2. Find out if it has an ESW1
As mentioned previously, getting an ESW1 can take a considerable amount of time. And unless the building already has one, it is likely to be more challenging to get a mortgage.
3. Check that the insurer is happy to continue insuring the block
Like mortgage lenders, some insurers could baulk at mere mention of the word ‘cladding’, so check that the building insurer is happy to continue providing cover.
“You should now be asking these questions as standard when you’re viewing any flat in a block, at the same time as you’re asking about other things like ground rent and how many years are left on the lease.” – Lauren Thomas
Until 2021, the costs of any remediation works for unsafe cladding were the sole responsibility of the leaseholders. But in February 2021, the Government promised a £3.5bn funding scheme for rectifying unsafe cladding.
For buildings of 18 metres and over in height, all remediation works are fully funded by the Government. Leaseholders in buildings measuring between 11 and 18 metres were eligible for a finance scheme that meant they wouldn’t have to pay more than £50 per month for the removal of unsafe cladding.
But now, under the Building Safety Act 2022, there is better financial protection for qualifying leaseholders of flats in buildings above 11 metres or five storeys. Building owners cannot charge leaseholders for removal of cladding or other remedial works on dangerous cladding. There is also protection from the costs associated with other interim fire safety measures for the building, such as waking watches.
However, this financial protection only applies to those who don’t own more than three UK residential properties.
If you are a leaseholder and are having any issues, you can seek advice and assistance from The Leasehold Advisory Service and the Leasehold Knowledge Partnership.[1]
It goes without saying that as a landlord, providing a safe home for your tenants should be your number one priority.
If you own a flat and have not yet done so, you should immediately enquire whether the freeholder has applied for an EWS assessment – or if they are aware of the materials used in the cladding and exterior walls. If they cannot provide you with this information, it is their responsibility to arrange an assessment.
However, when it comes to EWS assessments or getting an EWS1 certificate, there are limiting factors that are beyond your control.
The combination of a limited number of engineers and a backlog of remedial building works means that it may be years before you can provide an EWS1 certificate for your tenants - although that doesn’t mean you shouldn’t start the process, especially if your building is in a higher risk category (18 metres or above).
While you are waiting for an EWS1 certificate, reassure your tenants that it is being pursued, as well as making sure you’re doing everything in your power to keep them safe within your property.
On 28 April 2022, the Building Safety Act (England) was granted Royal Assent. It covers the whole homebuilding industry in England and changes the way that buildings are designed, built, managed and made safe. Importantly, the Act allows those responsible for historical building safety defects to be held to account.
One of the earliest steps that was taken was the creation of a building safety pledge, where developers that signed up agreed to:
The government website has a list of developers that have signed the pledge to date.
In terms of legislative changes, at the point the Act was passed, many provisions were still to be clarified. However, the Government confirmed that it intended to introduce the various legal structures that support the new building safety regime – e.g. changes to the Regulatory Reform (Fire Safety) Order 2005 – within 12 months.
Since then, some legislation has come into force, but aspects of it currently seem to be open to interpretation and therefore could be subject to change.
What follows is a summary of what we understand about the legal changes to date and their implications for landlords and agents. However, because this is new and relatively untested legislation, we would recommend you seek specialist advice on safety, particularly fire safety measures, for your own individual property.
This legislation, which came into force on 23 January 2023, is separate from the Building Safety Act, but it supports the new regime established in the Act.
These new fire safety regulations have important implications for landlords, as they introduce new duties for ‘Responsible Persons’ – e.g. building owners or property managers – of all multi-occupied buildings.
That’s any property that contains two or more domestic premises, with common parts (e.g. hallway or stairwell) that residents would need to pass through to exit the building in case of an emergency.
For HMOs and flats in blocks up to four storeys, the changes are relatively straightforward, but if your property is in a building of over 11 metres in height, the new rules are much more complex.
Every multi-occupied building that falls under the regulations must have a ‘Responsible Person’ appointed. This can be an individual or an organisation and will typically be the managing agent, the freeholder or the residents’ management company.
The Responsible Person must make sure specific legally required duties are carried out, including:
Full information on duties of the Responsible Person can be found on the government website.
Note: For multi-occupied buildings over 11m in height, the Responsible Person has additional duties – see section below.
In the vast majority of cases, privately let HMOs will be four storeys or less. That means the only change for HMO landlords will be appointing a Responsible Person to carry out the required duties outlined above.
Meanwhile, with this enhanced focus on fire safety, it’s vital to check that you are already meeting all of your existing obligations. For instance:
All of these safety factors are crucial to ensuring your tenants are as safe as possible.
For a round-up of all the fire safety regulations for landlords, see our information, see our 'Ultimate guide to fire safety’.
Both the Building Safety Act 2022 and the Fire Safety (England) Regulations 2022 bring into force tighter rules and regulations for buildings that are over 11 metres in height – with additional rules if the building is high-rise – that’s over 18 metres or seven storeys.
Because of the complexity of these rules, we have not included them all here and recommend that you seek specialist advice from professional building safety experts, such as RICS or a local Fire Safety Officer.
But, for example, in addition to the duties outlined in the section above, the Responsible Person must also:
In buildings over 11 metres:
In buildings over 18 metres or seven storeys:
For full details of all the Responsible Person’s fire safety responsibilities, see the government website.
Two other key changes for high-rise residential buildings under the Building Safety Act:
All high-rise residential buildings must be registered with the new Building Safety Regulator (part of the Health and Safety Executive), within six months from April 2023, with a named person responsible for maintaining their safety.
For more information, visit the HSE website.
This is a highly complicated area. Essentially, if remedial works are required in order to comply with the new building safety rules and the landlord wants the leaseholder of individual flats to contribute to the cost, they must provide them with a Landlord Certificate.
The Landlord must also provide this certificate when a leasehold property is sold, or if the leaseholder requests one.
Importantly, the certificate must be based on the circumstances of whoever was the relevant landlord on 14 February 2022.
If you are the leaseholder of a flat, you may qualify for financial protection. In this case, you must complete a ‘leaseholder deed of certificate’.
See the government website for more detailed information.
Again, we would emphasise that because this is new, complex and relatively untested legislation, we have not gone into detail. We recommend that if you have a property in a multi-occupied building of more than 11 metres in height, you seek specialist advice.
If you use an agent to let and manage your property, there are two key things to know:
There will also be an increased need for landlords to undertake their own due diligence about how agents market their property and disclose material information. We’ve seen that the assessment process is extensive and time-consuming, and that a lot of the buildings that have received an external wall fire assessment require remediation work. This raises the question, what material information should a letting agent disclose to a tenant about building safety, particularly if the EWS1 form cannot be produced?
Sean Hooker, Head of Redress at the Property Redress Scheme, offers his perspective:
“Material information disclosure includes building safety - if a property has not had an inspection, it doesn’t necessarily mean that it is unsafe. But it could be, and there is a reasonable chance that it will require some remediation work. Both existing and prospective tenants should be told if the status of the building is unknown. They should also be made aware that it is possible that remedial works may be necessary at some point in the future. Some tenants may be prepared to take a risk and live in a property which hasn’t been signed off, but they may think twice if they are going to have to put up with the disruption of works to replace cladding or make other safety changes.”
Clear and transparent communication and record keeping is key to avoiding and dealing with complaints effectively, explains Sean.
“At the Property Redress Scheme, we’ve seen tenants progress down a transactional path with a let, only for it to fall flat when they realise that what they thought they were renting is not what they have ended up with. People are emotionally as well as financially invested when it comes to where they are going to live, and it is incredibly important that tenants are not misled. Agents must be diligent about monitoring the safety of their properties - sharing details of building safety with tenants upfront and being open about any remedial work. Being transparent will avoid bigger issues later on.”
Read more in Sean’s blog, ‘Lest we forget’.
Given the complexity of the new rules and responsibility placed on legal professionals for making sure all the correct certification and paperwork is in place, the cost of leasehold conveyancing is going up.
Indeed, some legal companies are no longer dealing with leasehold properties in high-rise buildings, as they can’t get indemnity insurance.
So, if you are buying or selling a leasehold property in a block, you will need to find a conveyancer that can do the work - and be prepared to pay two or three times as much as you would have prior to this legislation.
From 1 October 2023, the next stage of the Building Safety Act (Section 156) - which applies to fire safety in communal parts - came into force. These requirements apply to the non-domestic parts of multi-occupied residential buildings (such as communal corridors, stairways and plant rooms). In the private rented sector, they apply to landlords (Responsible Persons) who have control over the communal parts of buildings, typically landlords who let properties by the room. The requirements do not apply within individual domestic premises.
The new legislation is an amendment to the Fire Safety Order and introduces new rules on the performance of fire risk assessments and the provision of information to tenants about fire safety risks.
The Government has published guidance explaining what RPs need to do as a result of these changes made to the Regulatory Reform (Fire Safety) Order 2005, through the Building Safety Act 2022. Check your fire safety responsibilities on GOV.UK where there is full list of amendments.
For more information on the Building Safety Act, which was granted Royal Assent on 28 April 2022, visit the government website for guidance.
