Section 120, Building Safety Act 2022 Meaning of “relevant defect”

(1) This section applies for the purposes of sections 122 to 125 and Schedule 8.

(2) “Relevant defect”, in relation to a building, means a defect as regards the building that—

(a) arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and

(b) causes a building safety risk.

(3) In subsection (2) “relevant works” means any of the following—

(a) works relating to the construction or conversion of the building, if the construction or conversion was completed in the relevant period;

(b) works undertaken or commissioned by or on behalf of a relevant landlord or management company, if the works were completed in the relevant period;

(c) works undertaken after the end of the relevant period to remedy a relevant defect (including a defect that is a relevant defect by virtue of this paragraph).

“The relevant period” here means the period of 30 years ending with the time this section comes into force.

(4) In subsection (2) the reference to anything done (or not done) in connection with relevant works includes anything done (or not done) in the provision of professional services in connection with such works.

(5) For the purposes of this section—

“building safety risk”, in relation to a building, means a risk to the safety of people in or about the building arising from—

(a) the spread of fire, or

(b) the collapse of the building or any part of it;

“conversion” means the conversion of the building for use (wholly or partly) for residential purposes;

“relevant landlord or management company” means a landlord under a lease of the building or any part of it or any person who is party to such a lease otherwise than as landlord or tenant.

Comes into force on 28 June 2022. 

Applies to England and Wales

What is the collective noun for a group of “relevants”?

The question is a fair one, because the Building Safety Act refers to “relevant” people and things more than 700 times.

I’m going to plump for “embarrassment”, but I’m open to suggestions.

Section 120 contains such an embarrassment, from “relevant works” through “relevant period” to “relevant landlord or management company”.

Again, first things first – the definition only relates to the phrase “qualifying lease” where it appears in sections 122-125 and Schedule 8, so it has quite a limited application.

Subsection 2 contains the main definition of “relevant defect”.

In the embarrassment of relevants, there is one notable absence from subsection 2 – the “building” referred to is not a “relevant building”, but a plain old “building”.

Unfortunately, given the context in which it is applied in Schedule 8, that makes little difference.

The starting point is the identification of a/the defect/s that require/s remedy.

There are then two perspectives to review.

First, in subsection 2(a), the past.

In that review, it must be shown that the defect arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works.

In broad terms, that covers actions and omissions; materials used or not used, and, by subsection 4, includes professional services.

The intention, I suspect, is to cover both goods and services, aka materials and workmanship, including, presumably, the design and supervision elements of a project.

The second perspective – subsection 2(b) – is wider.

It considers the impact of the defect from the date when it arose, through the present and into the future. The aim is to determine whether the defect (not the works or materials) cause a building safety risk.

A word of warning.

The definition of “building safety risk” for the purposes of section 120 and its cohort is different to the definition in section 62, which defines “building safety risk” for the purposes of management of higher-risk buildings in Part 4.  

Section 62(1) reads:

“In this Part “building safety risk” means a risk to the safety of people in or about a building arising from any of the following occurring as regards the building—

(a) the spread of fire;

(b) structural failure;

(c) any other prescribed matter.

In section 120, we have:

“”building safety risk”, in relation to a building, means a risk to the safety of people in or about the building arising from—

(a) “the spread of fire, or

(b) “the collapse of the building or any part of it”

I do not know why the definitions are subtly different, nor why section 62 has the benefit of “any other prescribed matter”.

What is at least clear for the time being is that the risks must arise from the spread of fire or partial or complete building collapse alone.

Other risks to the safety of people in or about the building are – oddly – excluded.

Most of the remainder of section 120 explains certain phrases in subsection 2.

Subsection 3 defines relevant works.

Those works fall into three groups.

The first two groups of works must have been carried out in the 30 years leading up to 28 June 2022, ie after 28 June 1992. The 30 year period is defined as the “relevant period”.

The three groups of works comprise:

1. Works that were carried out as part of the construction or conversion of the building, or
2. Works that were carried out or commissioned by or on behalf of a relevant landlord or management company;
3. Works carried out after 28 June 2022 “to remedy a relevant defect (including a defect that is a relevant defect by virtue of this paragraph)”.

“Conversion” of a building is limited to the transformation of the building so that it can be used for “residential purposes”, either partly or completely.

As to the meaning of “residential purposes” – we have plenty of authority to consult. I uncovered some familiar faces when I scanned the statutes that include the phrase:

• Commonhold and Leasehold Reform Act 2002, Schedule 6. Useful cases under this Schedule include Q Studios (Stoke) RTM Co Ltd v Premier Grounds Rent No. 6 Ltd [2020] UKUT 197 (LC) and Gaingold Ltd v WHRA RTM Co Ltd [2006] 1 E.G.L.R. 81;
• Leasehold Reform, Housing and Urban Development Act 1993, section 4. The monumental work that is Mann J.’s judgment in Westbrook Dolphin Square Ltd v Friends Life Ltd [2014] EWHC 2433 (Ch) considers the meaning of “residential purposes”;
• Landlord and Tenant Act 1987 – Parts I (Rights of First Refusal) and III (Acquisition Orders) both refer to “residential purposes”.

Two definitions – “relevant landlord or management company” – are lumped together in subsection 5, although to be fair, the phrase is used as a whole in the definition of “relevant works”.

Breaking down the phrase, “relevant landlord” means a landlord “under a lease of the building or any part of it”. The definition does not use any verbs or expressions that might restrict the meaning to the landlord for the time being, aka the current landlord.

The same point can be made for “relevant management company”. Such a company is “any person who is party to such a lease otherwise than as landlord or tenant”.

That said, in my experience, a third party management company is rarely replaced.

If it is a limited company, it may change its name, but its company number will remain the same, and if it liquidates, the lease may provide that the landlord then takes up the reins.