It is over a year since the implementation of the landlord's certificate scheme under the Building Safety Act 2022 and its secondary legislation. Amendment regulations and an entirely new form of certificate have been issued by Government to address previous difficulties. This article focuses on the current position for residential landlords who continue to grapple with a process where strict deadlines for compliance leave minimal room for manoeuvre.
Who completes it?
The landlord's certificate needs to be completed by the "current landlord" – that is to say, the landlord of the leasehold interest in question at the time that the certificate is being completed.
the difficulty encountered by some current landlords is that the certificate needs to provide information about the property as at 14 February 2022 – the "qualifying time". The current landlord may not have been the landlord at the qualifying time or may have had a different level of involvement in the management or control of the building in question, and so the information or evidence required to complete the certificate may not be readily available.
As a result, current landlords are encouraged to contact superior landlords and other landlords in the building who may have information or documents that will support a current landlord in completing the landlord's certificate and may be required to be submitted as accompanying evidence.
What evidence is needed?
The evidence to be provided is dependent on whether or not the current landlord:
- Was the developer of the building or is responsible for the relevant defects (if any are identified at the time of completing the certificate);
- Is aware of any relevant defects when the certificate is completed; or
- Met the contribution condition, which applies where the landlord group's net worth as at 14 February 2022 was more than £2,000,000 per relevant building (although there is an exemption for private registered providers of social housing or local authorities).
Even landlords who are not aware of any relevant defects at the time of completing the certificate will still need to produce evidence relating to the year of construction of the building, as well as details of all "relevant works" undertaken since 28 June 1992.
"Relevant works" is an extremely wide definition encompassing all works of construction, conversion, and general works to the building during the period between 28 June 1992 to 28 June 2022, plus any works completed after that date that relate to the remediation of relevant defects.
On a strict interpretation, this could mean any and all works undertaken at the building for any purpose and could result in a landlord producing a list of everything done to the building during that time period. It is difficult to see what purpose this serves, but for landlords who wish to avoid any risk of non-compliance the key message is to begin gathering these details as soon as possible because the certificate and accompanying evidence must both be provided, with serious consequences if the deadlines are missed.
What are the time limits?
There is a strict time limit of 28 days to provide the landlord certificate from a triggering event. Triggering events include receiving notification that the leasehold interest is to be sold and discovery of a new relevant defect that was not covered by a previous landlord's certificate. The deadline is strict and non-negotiable, with no provision for obtaining an extension.
Landlords can therefore be easily caught out, with severe consequences in that the landlord who misses this deadline will be deemed to be responsible for any relevant defects at the building and consequently will not be able to recover any costs of remediation from the leaseholder in question, regardless of whether they have "qualifying lease" status.
A further deadline that was inserted when the regulations were recently amended, is that within one week of either serving a landlord certificate or receiving a leaseholder deed of certificate, the current landlord must provide a copy of the certificate to any Resident Management Company, Right to Manage company or named manager. In the case of a landlord's certificate, this must also be provided to any other landlords of premises in the building within the same timeframe. If the landlord fails to do so, then the costs of remediating relevant defects in the building cannot be recovered via service charges.
Conclusion
The key messages for landlords of relevant buildings are to ensure that they are aware of the triggering circumstances for completing a landlord's certificate, diarise the deadlines accordingly and to compile the supporting information (including details of relevant works) in advance of requests being made, where possible.
