Thread by @LiamSpender

#BuildingSafetyBill THREAD

Bill published here: publications.parliament.uk/pa/bills/cbill…

Explanatory notes here:
publications.parliament.uk/pa/bills/cbill…

Redline against 2020 here:
drive.google.com/file/d/14NjVrY…

1/15 I am going to write a post about the Bill that will be published by my friends @LKPleasehold later this week.

This thread sets out some initial reactions to the limitation reforms announced over the weekend.

Litigation isn't the answer, but the bill has more than expected.

2/15 In terms of extended limitation periods: first, the government is going to commence (bring into legal force) s. 38 of the Building Act 1984.

Secondly, the government is going to extend time for bringing claims under s.38 and under the Defective Premises Act 1972 to 15 years

3/15 The 15 years will still apply from the date the building is completed.

Regulations will have to be made under s. 38 of the Building Act 1984 to set out certain defences before that section comes into legal effect.

4/15 If the new 15 year period expires within 90 days of the bill becoming law, then anyone who is within that 15 year period will have at least 90 days to file a claim.

5/15 This is a change for both past and future works, so the limitation period in the future for DPA and s.38 claims will be for 15 years instead of the current 6 years.

And the s. 38 claims will finally be available for the first time.

6/15 Claims under the DPA can be made if someone can demonstrate a defect in materials or construction present at completion which makes the building inhabitable (which means difficult to occupy as intended, rather than impossible to live in).

7/15 Claims under s. 38 of the Building Act 1984 can be made if someone can show damage flowing from a breach of Building Regulations.

That is quite a dramatic reform, but will only be of use to buildings that are within the 15 years + 90 days mentioned above.

8/15 And you don't have to be an original purchaser in order to make either claim. They rest on statutory duties, not contracts or duties of care.

But you still have to be in time and able to make good the case and see through the litigation for it to be useful.

9/15 The huge reservation that goes with this is that the cladding safety issues (particularly in sub-18 metre buildings) are not to do with the Building Regulations. They are solely caused by the government's own Advice Notes. Doubtful whether any builder is liable for that.

10/15 Pursuing a claim also requires someone (i.e. leaseholders) to be able to finance the costs to settlement or conclusion of trial, perhaps at least one appeal.

Not cheap, easy or quick. Especially when leaseholders are already stung with waking watch and insurance bills

11/15 The claims under the DPA and the BA 1984 also do not allow recovery of all losses. Economic losses (e.g. reduced property prices, waking watch costs) are not recoverable under DPA.

Uncertain if recoverable under BA 1984 and that depends on defences under regulations.

12/15 And there is a get out for builders if they can show prejudice to their human rights from the extension of the limitation period (s. 126(5)).

How that would work in practice is anyone's guess.

13/15 But it is a start. And what the government has started can be taken further. Further in time and further in terms of amending the law to deliver better legal remedies.

But we still need more.

Much more.

14/15 We need up-front help for all leaseholders, regardless of the age and height of their building, for all defects.

Leaseholders can then assign these new/revived claims (if they are viable) to the government, perhaps the new Building Safety Regulator, to pursue itself.

15/15 There is a lot to digest in the draft Bill. Some of it looks as bad as the original draft. Some better. Overall it seems to need a lot of improving.

I am looking at it now and will post via @LKPleasehold later this week with further thoughts.