Article contributed by James Brooks, Novello Chartered Surveyors
Over the last 6 months, I have been on a ‘CPD roadshow’ meeting nearly 300 solicitors and delivering free training sessions covering a variety of topics from building regulations to the implications of sprayed foam insulation (please get in touch if this is of interest to your firm). However, one topic which repeatedly dominated the sessions was fire safety, EWS1’s and the dreaded Building Safety Act 2022. It quickly became apparent that there was sheer panic across the industry and in April we hosted a training session alongside Ian Quayle, appropriately named ‘What the F*** is the Building Safety Act!?.’ Many solicitors are still getting to grips with the repercussion of the seemingly ill-thought-out Act, and even fewer surveyors have worked out what it means for them. There is a real risk that a lack of understanding could result in issues falling down the gap between professional advisors and here I hope to give a surveyor’s perspective to help solicitors mitigate their risk….
Conveyancers should explain to any client buying any property the benefit of having a level 3 building survey but particularly where a property might fall under the provisions of the Building Safety Act 2022 by being in excess of 11 metres in height or being more than 5 storeys. I would of course say this as a surveyor! but advising the client to have full Level 3 Building Survey (regardless of age) is an essential tool to protect yourself from claims. Whilst it may not highlight all building safety issues, it should highlight some of the main issues such as cladding concerns or structural issues. This approach alongside limiting your own retainer relating to any advice on the BSA (Building Safety Act), will help reduce your own risk.
It is important to appreciate most surveyors have fire safety exclusions in their PI, which means if they miss any issues relating to fire safety e.g., cladding, they do not have the benefit of PI cover. Therefore, most surveyors will adopt a conservative approach and often be unwilling to give definitive answers on anything that could generate exposure to an uninsured claim. Matters relating to fire safety and cladding are specialist and beyond the expertise of most general surveyors to comment on. Nevertheless, surveyors should be flagging any cladding concerns and requesting an EWS1 or FRAEW where appropriate.
The first stumbling block is in establishing the height of the building to see if it meets the criteria of the Act. I would take a conservative approach, four-storey buildings (and even some tall three-storey buildings) could exceed 11 metres in height- so do not just assume it only applies to five storeys and above. Most surveyors will not confirm if the building is above 11m, the measurements for this are quite complex and certainly outside the scope of a typical survey. It involves measuring from the finished floor level of the top floor of accommodation to the lowest part of the ground level (excluding anything below ground level). This can be achieved if there is a communal stairwell running the height of the building but can be quite difficult and easy to make an error on, either way, most surveyors will just not be willing to risk their PI commenting or advising on this. It seems an easy question, but if they measure it as 11.1m2 and it turns out to be just below and therefore outside the scope of the Act, then the surveyor is heavily exposed to an uninsured claim. I do not yet know of any surveyor offering a service to measure these buildings and therefore establishing the height can prove to be a tricky task and probably not one your surveyor will help with.
The protection afforded under the Building Safety Act only applies to building safety issues, which in most cases is either going to be cladding, fire safety or structural/collapse. As such, there are ways to mitigate these risks…
With regards to cladding, surveyors should be highlighting any concerns they have in their report. If they flag concerns an EWS1 form or FRAEW (Fire Risk Appraisal of External Walls), or other supporting documentation (e.g., evidence it meets the current Building Regulations 2018) should be requested from the building owners. Other fire safety issues could be a lack of fire doors to the communal areas, lack of smoke alarms or escape routes and these issues are likely to be beyond the scope of any survey, after all a surveyor is not a fire safety engineer and any inspection of the communal areas is normally cursory. However, you can always ask, but the best way to cover this risk is checking for a recent Fire Risk Assessment of the block. If one is not present- I would push for this to be produced.
Structural issues would normally have to be very serious for there to be a safety risk and therefore surveyors should be able to observe and comment upon any visible structural issues (such as significant cracking and movement). Although they might not be aware of all issues for example concrete steel corrosion which might be in hidden areas. If the surveyor highlights any concerns relating to structural movement a further report by a structural engineer should be requested to rule out any issues.
Whilst this does not provide a full-proof risk mitigation, I believe covering these points will help limit the risk of issues for solicitors, arising under the Building Safety Act. Engaging the surveyor as early as possibly on these matters will definitely help, it is always better to alert the surveyor pre-inspection so they can focus on these matters when inspecting.
Here is an example of questions you may wish to ask the surveyor on BSA issues:
With regards to the BSA 2022 is there anything you can advise to help mitigate my client’s risk? Whilst I appreciate you cannot give definitive answers and some of this will fall outside your survey scope, did you note any building safety issues or defects during your inspection? Specifically, from your inspection:
- Was there any evidence of cladding, combustible attachments/balconies, or anything else that may be a fire safety concern and/or require an EWS1?
- Were there any other visible fire safety issues to the communal areas e.g., lack of fire doors, smoke alarms etc.
- Were there any visible structural issues which could pose a safety concern e.g., structural movement or cracking which could result in collapse
- Were there any signs of remediation work having been undertaken to the building related to or connected with fire safety or defective construction
The above advice all focuses upon the risks of building safety defects being discovered and the implications for you as advisers if it turns out that they do not benefit from the protections under the Act. However, there are various other implications of the Act which might be of concern. For example, if they are undertaking a lease extension which results in a surrender and re-grant- this will potentially take the new lease outside of the Act. This has recently been addressed by the Government who have stated they will amend it as soon as the parliament timetable allows, in the meantime they have asked parties to honour the original protections of the Act in the new lease. However, it goes without saying that the practical implications of this ‘goodwill’ are unlikely to transpire in the real world and it is unlikely the landlord will do this without charging a premium. Therefore, the current advice is not to extend a lease which benefits from protections under the Building Safety Act until the government make the necessary changes. A shame no one thought about that at the time!
Navigating the repercussions of the Building Safety Act 2022 is a real headache for conveyancers at the moment. My view is that there has been a somewhat knee-jerk reaction with solicitors panicking and in many cases refusing to act. By all means, increase your fees to reflect the increased risk and complexity, but I believe that the risks can be significantly reduced by limiting your retainer, asking the right questions, and gathering the right documents.
About the author:
James Brook, FRICS
James Brook is a Chartered Surveyor specialising in Prime London surveys and valuations as James Brook Private Clients. He is also the Managing Director of Novello Chartered Surveyors, a multi-discipline firm providing surveying and valuation services across London and the Home Counties. He is recognised globally as one of the youngest Fellow of the RICS and is a recent winner of the RICS Matrics Residential Surveyor of the Year.
He is currently on a ‘CPD Roadshow’ delivering free training sessions for conveyancing firms across London and the South-East- so please do get in touch if you would like to learn more.
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