Section 119, Building Safety Act 2022 Meaning of “qualifying lease” and “the qualifying time” 

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

(2) A lease is a “qualifying lease” if—

(a) it is a long lease of a single dwelling in a relevant building,

(b) the tenant under the lease is liable to pay a service charge,

(c) the lease was granted before 14 February 2022, and

(d) at the beginning of 14 February 2022 (“the qualifying time”)—

(i) the dwelling was a relevant tenant’s only or principal home,

(ii) a relevant tenant did not own any other dwelling in the United Kingdom, or

(iii) a relevant tenant owned no more than two dwellings in the United Kingdom apart from their interest under the lease.

(3) Where a dwelling was at the qualifying time let under two or more leases to which subsection (2)(a) and (b) apply, any of those leases which is superior to any of the other leases is not a “qualifying lease”.

(4) For the purposes of this section—

(a) “long lease” means a lease granted for a term of years certain exceeding 21 years, whether or not it is (or may become) terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture or otherwise;

(b) a person “owns” a dwelling in England, Wales or Northern Ireland if the person has a freehold interest in it or is a tenant under a long lease of it;

(c) “relevant tenant” means a person who, at the qualifying time, was the tenant, or any of the tenants, under the lease mentioned in subsection (2);

(d) “service charge” has the meaning given by section 18 of the Landlord and Tenant Act 1985.

Comes into force on 28 June 2022

Applies to England and Wales

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.

The fiddly part is subsection (2), which sets out the circumstances in which a lease is a “qualifying lease” for the purposes of sections 122-125 and Schedule 8.

Four conditions must be satisfied.

“Long lease”

A long lease is defined in subsection (4) in very nearly the same terms as in section 3 of the Leasehold Reform Act 1967, and in identical to terms to:

• Section 59 of the Landlord and Tenant Act 1987 – which defines “long lease” for the purposes of the whole of that Act;
• Section 7 of the Leasehold Reform Housing and Urban Development Act 1993 – which defines “long lease” for the purposes of collective enfranchisement;
• Section 76 of the Commonhold and Leasehold Reform Act 2002 – which defines “long lease” for the purposes of the Right to Manage and
• Section 22 of the Leasehold Reform (Ground Rent) Act 2022 – which defines “long lease” for the purpose of the whole of that Act.

“Dwelling”

In Uratemp Ventures Ltd v Collins [2001] UKHL 43, the House of Lords held that a hotel room constituted a “dwelling”, even though it did not have proper cooking facilities.

Uratemp was however a case about the meaning of “dwelling” in the private rented sector, under section 3 of the Housing Act 1988.

The meaning of “dwelling” in the Landlord and Tenant Act 1985 was directly considered in JLK Ltd v Ezekwe [2017] UKUT 277 (LC), in which the Upper Tribunal (Lands Chamber) distinguished Uratemp.

Ezekwe was a case involving student accommodation, described as “pods”. The majority of the pods were single bedrooms with en-suite shower and toilet facilities. The remainder shared bathrooms and toilets. Each pod had the use of a communal kitchen and lounge.

Martin Rodger QC held that a long lease of a pod was not a long lease of a “dwelling” under the 1985 Act. He said:

“Section 38 of the [Landlord and Tenant Act 1985] contains minor definitions, including the following definition of “dwelling”: “‘dwelling’ means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it”.

He observed, pithily that, “as a definition of “dwelling” s.38 perhaps leaves something to be desired, as it includes the word it seeks to define”.

I am not sure whether it is preferable to work with a definition that leaves something to be desired, or no definition at all.

Either way, in the Building Safety Act, we will be working in a world where “dwelling” is not defined, which is odd (again), because its contemporary, the Leasehold Reform (Ground Rent) Act 2022, does define “dwelling” at section 22.

“Relevant building”

Sections 117 and 118 define relevant building. See here and here.

“Service charge” here has the same meaning as it does in section 18 of the Landlord and Tenant Act 1985.

This condition is almost unnecessary, given that the whole purpose of this part of the Building Safety Act is to reduce/extinguish liability to pay a service charge.

If a tenant/leaseholder is not required to pay a service charge under the terms of their lease, none of the sorry building safety story of the past five years would concern them.

But there we are.

And on we go.

14 February 2022 – Valentine’s Day – is the date on which the Government proposed a raft of amendments, including these new sections in Part 5 of the Act, along with a replacement of the previously proposed Schedule 8.

It has the benefit of memorability, and in that it might be compared to the Court of Appeal’s judgment in Phillips v Francis [2014] EWCA Civ 1395, which was handed down on Hallowe’en 2014.

The first point to note is the timing: the “qualifying time” is the beginning of 14 February 2022 – it is not “on” 14 February 2022 as in “at some point during the day of 14 February 2022”.

We are then presented with three scenarios. I find them rather odd. They are (in full):

• the dwelling was a relevant tenant’s only or principal home,
• a relevant tenant did not own any other dwelling in the United Kingdom, or
• a relevant tenant owned no more than two dwellings in the United Kingdom apart from their interest under the lease.

I naturally read these as three alternative scenarios because “or” appears before (ii) and (iii).

(i) is very clear. I live in the flat of which I am the leaseholder. It is the only property in which I have a property interest. (ii) and (iii) seem however to overlap.

For the life of me, I cannot see why (ii) is needed, because it is contained in (iii).

If I read the scenarios as if “and” appeared at the end of (i), (ii) still seems surplus to requirements.

In July 2021, the Government produced a range of fact sheets designed to provide more information about the Building Safety Bill, as it then was. Those fact sheets remain on the DLUHC website, and are updated.

The Government’s Building Safety Leaseholder Protections fact sheet (05 April 2022 update) says this on the subject:

Subsection 4(b) puts to bed any dispute about whether a leaseholder “owns” a flat. It includes within the definition of “owns” a “tenant under a long lease of [a dwelling]”.

By subsection (3), where there is a chain of leases, we are effectively directed to the lease that is lowest in the chain.

Where there is a head landlord/freeholder; a head lessee and any number of a sub/under-lessees, the lease that is last in that line will probably be the lease that could be a “qualifying lease”, provided that it satisfies the other conditions in section 119.

More often than not (but always worth checking), that will also be the lease that gives the leaseholder a right to possession of the flat.

The framework of subsection 3 appears to be broadly modelled on the definition of “qualifying tenants” in section 75(6) – again, a section connected with acquiring the Right to Manage – of the Commonhold and Leasehold Reform Act 2002.