High risk buildings: What a trustee landlord needs to know

Since October 2023 all high-risk buildings (HRBs) must be registered with the Building Safety Regulator (BSR). It is a criminal offence to allow occupation of an unregistered HRB. A building will be a HRB if it is at least 18 metres high or has seven or more storeys, and contains at least two residential units.

Where a HRB is held in trust, the individual trustees will typically be named as landlords in the lease and the trustees will therefore be the designated Principal Accountable Person (PAP) for the HRB under the Building Safety Act regime. This designation will apply even if the trustees have limited or no direct involvement with the building or its management.

It is not possible to contract out of being the PAP. While trustees may choose to delegate some or all of the duties of the PAP, for instance, to a management company, the trustee will remain ultimately – and personally – liable for compliance.  Whilst trustees will often seek to limit liability by seeking an indemnity or professional indemnity insurance, it is not possible to put in place measures to protect a trustee from criminal liability. It is therefore vital that trustee landlords are aware of their duties as a PAP and are proactive in fulfilling them.

Failure to comply with the PAP’s duties can result in criminal liability, and ill-prepared trustee landlords could therefore face criminal sanctions, including up to two years in prison or a fine (or both).

The PAP is responsible not only for registering the HRB but also for the management, assessment and mitigation of building safety risks in the HRB including:

• Implementing measures to prevent and reduce the impact of building safety risks.
• Reporting certain fire and structural safety issues to the BSR.
• Preparing and maintaining a resident engagement strategy.
• Communicating with residents about building safety and fulfilling engagement obligations.
• Keeping and updating the building’s safety case information.
• Notifying the BSR of any changes to accountable persons.
• Transferring safety information to any incoming accountable person.

The legislation does not contemplate a scenario where the PAP is a trustee and, as such, no account is taken of the fact that trustees may know very little about buildings which they are landlord.

With a wealth of expertise in advising on building safety legislation, and a long history of advising both landlords and trustees, we are ideally positioned to help trustees navigate their duties under this important regime.